SUPREME COURT OF CANADA File no. 33114 (ON APPEAL FROM A JUDGMENT OF THE SUPERIOR COURT OF QUÉBEC) BETWEEN: THE GLOBE AND MAIL, A DIVISION OF CTV GLOBEMEDIA PUBLISHING INC. APPLICANT (Petitioner in the Superior Court) - and - ATTORNEY GENERAL OF CANADA RESPONDENT (Plaintiff in the Superior Court) - and - LE GROUPE POLYGONE ÉDITEURS INC. RESPONDENT (Defendant in the Superior Court) RESPONSE OF THE RESPONDENT THE ATTORNEY GENERAL OF CANADA TO THE APPLICANT S APPLICATION FOR LEAVE TO APPEAL AND EXTENSION OF TIME TO FILE AND APPLICATION FOR LEAVE (Sections 40 and 59(1) of the Supreme Court Act and Rule 27 of the Rules of the Supreme Court of Canada) John Sims, Q.C. John Sims, Q.C. Deputy Attorney General of Canada Deputy Attorney General of Canada Simon Ruel, Esq. Christopher M. Rupar, Esq. Department of Justice Canada Department of Justice Canada 5 th Floor Room 1212 200 René-Lévesque Blvd. West 234 Wellington Street Montréal, Québec H2Z 1X4 Ottawa, Ontario K1A 0H8 514 283-1895 Tel. 613 941-2351 Tel. 514 283-3856 Fax 613 954-1920 Fax simon.ruel@justice.gc.ca E-mail christopher.rupar@justice.gc.ca E-mail Counsel for the Respondent Attorney General of Canada Agent for the Respondent Attorney General of Canada Henri A. Lafortune Inc. 2005 Limoges Street 450 442-4080 Tel. Longueuil, Québec J4G 1C4 450 442-2040 Fax L-3190-09 lafortune@factum.ca www.halafortune.ca
- 2 - Guy Du Pont, Esq. William Brock, Esq. Davies Ward Phillips & Vineberg LLP 26 th Floor 1501 McGill College Avenue Montréal, Québec H3A 3N9 514 841-6400 Tel. 514 841-6499 Fax gdupont@dwpv.com E-mail wbrock@dwpv.com E-mail Counsel for the Appellant Louis-P. Bélanger, Esq. Stikeman Elliott LLP Suite 4000 1155 René-Lévesque Blvd. West Montréal, Québec H3B 3V2 514 397-3078 Tel. 514 397-3578 Fax lpbelanger@stikeman.com E-mail Counsel for the Respondent Le Groupe Polygone Éditeurs Inc.
TABLE OF CONTENTS DESCRIPTION OF DOCUMENTS Page FACTUM OF THE RESPONDENT THE ATTORNEY GENERAL OF CANADA OVERVIEW...1 PART I STATEMENT OF FACTS...3 PART II CONCISE STATEMENT OF QUESTIONS IN ISSUE...7 PART III CONCISE STATEMENT OF THE ARGU- MENTS...8 1. Whether the application for leave to appeal raises an issue of national importance which would justify an intervention of the Supreme Court of Canada?...8 National Post appeal...8 The Quebec Charter and Civil Code...8 The Quebec Court of Appeal offered advice on how to have the matter heard on appeal...9 2. Whether an extension of time to file the application for leave to appeal is warranted in the circumstances?...10 PART IV SUBMISSIONS ON COSTS...13 PART V ORDERS SOUGHT...14 PART VI ALPHABETICAL TABLE OF AUTHORITIE...15 DOCUMENT IN SUPPORT R. v. Roberge, [2005] 2 S.C.R. 469...16
- 1 - Overview FACTUM OF THE RESPONDENT THE ATTORNEY GENERAL OF CANADA OVERVIEW 1. The matters raised by the Globe and Mail before this Court arose in the context of a dispute between the Globe and Mail and the Respondent Polygone, one in which the Attorney General of Canada deferred to the Court s discretion in the courts below. 2. In the context of proof and hearing of the Globe and Mail s motion to revoke an order permitting discovery of federal government employees with a view to establishing a defence of prescription on the part of Polygone, counsel for Polygone asked the Globe and Mail witness, journalist Daniel Leblanc, questions in relation to his source of information about the operation of the sponsorship program. The Globe and Mail objected to these questions on the ground that they violated the journalist confidential source relationship. Reference was made to the Wigmore rules for determining whether the information sought by the questioning was privileged. The motions judge dismissed the objection. On a motion for leave to appeal to the Quebec Court of Appeal, the single judge dismissed the motion on procedural grounds but offered advice on how to have the matter heard on appeal. 3. The Globe and Mail only now takes up the Court of Appeal justice s advice, in part. The Globe and Mail seeks leave to appeal to this Court the decision of the motion judge s dismissal of the objections based on journalist source relationship arguing, not what was argued before the motions judge, but rather the thesis that the matter needs to be dealt with under the Quebec Charter of Human Rights and Freedoms and the Quebec Civil Code, even though the issues are similarly approached under the Canadian Charter of Rights and Freedoms and the
- 2 - Overview Wigmore rules on privilege arising in the context of a journalist source relationship. 4. This is not an appropriate case where leave to appeal to this Court should be granted the National Post appeal before this Court may resolve many of the general issues raised here by the Globe and Mail; the arguments now being advanced have not been dealt with by either the motions judge or the Court of Appeal; there is no record to argue the matter satisfactorily before this Court; and the motions judge has not had the opportunity to fashion a remedy protecting the identity of the source, if revelation of his or her identity is likely from the questions being posed on discovery. 5. Further, an extension of time to seek leave to appeal should not be granted given the delays in bringing the matter in its present form before this Court and the absence of an immediate need to deal with the arguments now being advanced in the leave application. ----------
- 3 - Statement of Facts PART I STATEMENT OF FACTS 6. Following the proceedings of the Commission of Inquiry into the Sponsorship Program and Advertising Activities ( Gomery Commission ), the Attorney General of Canada instituted a civil action to recover sponsorship funds in the amount of 63M$. 1 Le Groupe Polygone Éditeurs Inc. ( Polygone ), which was an important sponsorship recipient, is the main defendant in the action. 7. Information about the sponsorship program was provided to Globe and Mail journalist Daniel Leblanc by an informer dubbed Ma Chouette, starting in 2000. In 2006, following the publication of the report of the Gomery Commission, Mr. Leblanc published a book titled Code Name: Ma Chouette, where the existence of the informer was revealed and the e-mail communications between the journalist and the source reproduced. 8. In defence to the civil recovery action, Polygone pleads prescription and contends that if Mr. Leblanc s confidential source is a Government employee of a certain rank, knowledge could be imputed to the Government of Canada more than three years prior to the institution of the action. 2 9. In this context, orders were issued on May 18 and June 27, 2007, at the request of Polygone, by the Honourable Gilles Hébert of the Quebec Superior Court, then case managing judge of the civil recovery action, whereby 22 persons, among them federal public servants, were asked to respond in writing and under oath whether they were Ma Chouette, Daniel Leblanc s confidential informant. Pursuant to article 397 the Code of Civil Procedure, employees and former employees are not third parties. 1 2 The action was instituted on March 11, 2005. The time limitation period is three years as per section 2925 of the Quebec Civil Code.
- 4 - Statement of Facts 10. Upon learning about the existence of the written discovery orders, the Globe and Mail filed before the Quebec Superior Court a motion to revoke the orders at the request of a third party pursuant to section 489 of the Quebec Code of Civil Procedure. 11. At the hearing on the motion to revoke held on August 26, 2008, before the Honourable Jean-François de Grandpré of the Quebec Superior Court, the Globe and Mail counsel called the journalist Daniel Leblanc as its witness. 12. Counsel for Polygone cross-examined Mr. Leblanc and asked him the following questions, to which counsel for the Globe and Mail objected on the basis of relevance and of the protection of journalist source relationship: a) Did he have discussions with his confidential source after May 18, 2007? b) Did he have discussions with his confidential source after January 2008? c) Was the confidential source s name in the list of witnesses Justice Hébert allowed to be examined out of Court? d) Was the confidential source an employee of the federal government? e) If the confidential source was an employee of the federal government, what department did she work in? f) If the confidential source was an employee of the federal government, at what level of her department did she work? 13. The same day, on August 26, 2008, after argument, Mr. Justice de Grandpré rendered a short oral decision where he dismissed the objections as he found that the questions were relevant to the revocation proceedings and that the
- 5 - Statement of Facts information was not protected under the Wigmore rules for determining whether the information sought was privileged. 14. The Globe and Mail immediately filed before the Quebec Court of Appeal a motion to stay the revocation proceedings and a motion for leave to appeal the decision of Mr. Justice de Grandpré dismissing the objections. The matter was heard on August 26, 2008, by the Honourable Pierre J. Dalphond of the Quebec Court of Appeal, sitting alone. 15. In a decision rendered on September 8, 2008, Mr. Justice Dalphond dismissed the Globe and Mail s motions to stay the revocation proceeding and for leave to appeal. In his reasons, Mr. Justice Dalphond explained that the revocation proceeding was distinct from the underlying trial and indicated that, under paragraph 29(2) of the Code of Civil Procedure, an interlocutory judgment rendered during such proceeding cannot be immediately appealed unless it dismisses an objection based on article 9 of the Quebec Charter of Human Rights and Freedoms protecting professional secrecy or unless it allows an objection to evidence. 16. Mr. Justice Dalphond found that, if an appeal to the Quebec Court of Appeal was possible, it would be as of right based on article 9 of the Quebec Charter, if applicable to journalists, but not on leave. Mr. Justice Dalphond concluded in saying the following: 1. «En conclusion, je suis bien conscient des objections soulevées par le Globe and Mail et du fait qu elles méritent l attention de la Cour. Mais puisqu on n attaque pas la constitutionnalité de l art. 29 C.p.c., je dois l appliquer. Il s ensuit que je ne peux accorder une permission d appeler. Par contre, rien n empêche le Globe and Mail de déposer une inscription en appel en invoquant l art. 9 de la Charte québécoise. La Cour devra alors décider si la protection de cet article s étend aux
- 6 - Statement of Facts journalistes. Par contre, si le Globe and Mail est avisé que cette disposition est inapplicable, il devra s adresser à la Cour suprême du Canada dans la logique de l arrêt Dagenais ou encore de demander au juge de première instance les ordonnances de protection appropriées lors de la reprise de l instruction de la requête en rétractation.» 17. Following the release of Mr. Justice Dalphond s decision, the Globe and Mail did not file a notice of appeal to the Quebec Court of Appeal or immediately file an application for leave to appeal to the Supreme Court of Canada. It rather chose to discontinue its revocation proceeding with the stated intention to protect its journalist from further testifying and from contempt. The Globe and Mail filed on the same day an intervention in Superior Court for the purpose of being informed and to be able to challenge future attempts to obtain the disclosure of the identity of the confidential informant. 18. Polygone challenged the right of the Globe and Mail to discontinue its revocation proceeding and, on November 5, 2008, Mr. Justice de Grandpré denied the Globe and Mail the right to discontinue and ordered the continuation or the revocation proceeding. On December 15, 2008, the Quebec Court of Appeal granted a motion presented by Polygone to dismiss an appeal filed by the Globe and Mail of that last decision. Leave to appeal of that decision before this Court was sought by the Globe and Mail. 3 ---------- 3 Court No. 32975.
- 7 - Concise Statement of Questions in Issue PART II CONCISE STATEMENT OF QUESTIONS IN ISSUE 19. Whether the application for leave to appeal raises issues of national importance which would justify an intervention of the Supreme Court of Canada? 20. Whether an extension of time to file the application for leave to appeal is warranted in the circumstances? 21. respectfully submits that the Globe and Mail has not met the criteria warranting an extension of time to file its application for leave to appeal and that the particular circumstances of this matter do not warrant an intervention of this Court. ----------
- 8 - Concise Statement of the Arguments PART III CONCISE STATEMENT OF THE ARGUMENTS 1. Whether the application for leave to appeal raises an issue of national importance which would justify an intervention of the Supreme Court of Canada? National Post appeal 22. The Globe and Mail suggests that its appeal would allow this Court to address a number of issues important to journalists, notably whether the journalist source relationship has stand alone constitutional protection, for example under section 2(b) of the Canadian Charter of Rights and Freedoms and if not how it relates to freedom of the press. 4 23. The Globe and Mail has intervened in the National Post appeal 5 to this Court and granting leave in the present case to make these same or similar arguments does not seem necessary. The Quebec Charter and Civil Code 24. The Globe and Mail, now with new counsel, seeks to re-argue its objections to questions asked at the hearing of its motion to revoke written discovery orders addressed to federal Government employees. 25. Now instead of arguing from the perspective of section 2(b) of the Canadian Charter, the Globe and Mail would argue the same objections based on section 3 of the Quebec Charter. Given that similar concerns are addressed by section 4 5 Paragraphs 35, 42 and 43 of the Applicant s Memorandum of Arguments. Court No. 32601.
- 9 - Concise Statement of the Arguments 2(b) of the Canadian Charter and section 3 of the Quebec Charter, it would appear unnecessary to grant leave in the present matter as many of these issues may be resolved again by this Court s decision in National Post. 26. This is even more in this case where the matter was not addressed from the perspective of section 3 of the Quebec Charter either by the motions judge or the single judge in the Quebec Court of Appeal. The Quebec Court of Appeal offered advice on how to have the matter heard on appeal 27. Leave is normally sought from a court of appeal. In this case, that would be the decision dismissing the motion for leave to appeal the motions judge s decision dismissing objections to questions put to the Globe and Mail witness, the journalist Daniel Leblanc, on the grounds that the questions violate his journalist source privilege. 28. In its leave materials, the Globe and mail does not take issue with this decision of the single judge of the Court of Appeal dismissing the motion for leave. Rather it relies on the single judge s assessment of the issues as being important. 29. But, the Globe and Mail did not take up the single judge s invitation that it appeals directly to the Quebec Court of Appeal on whether or not article 9 of the Quebec Charter on professional secrecy applies to journalists, and consequently the impact of article 9 on the objections to the questioning of the journalist. Nonetheless in the present leave application, the Globe and Mail refers to
- 10 - Concise Statement of the Arguments article 9 of the Quebec Charter as part of why the present matter should be of interest to this Court. 6 30. The Globe and Mail alleges confusion in the Quebec courts as to the proper relationship between Quebec s codified law and the common law dealing with similar issues. 7 At best, this allegation is based on a single decision of a Superior Court judge, here the motions judge, where it was the Globe and Mail s former counsel who made the arguments. 31. Surely, it is for the court of appeal of the province to first put order into matters which could have been brought before it where duly framed. 32. For all these reasons, the Respondent submits that this application for leave to appeal does not raise issues of national importance which would justify an intervention of this Court. 2. Whether an extension of time to file the application for leave to appeal is warranted in the circumstances? 33. The Respondent submits that this question should be answered in the negative. 34. Requests for extension of time for leave to appeal before this Court are governed by section 59 of the Supreme Court Act, and such requests may be granted under special circumstances. 35. In the case of R. v. Roberge, this Court stated the factors that should guide the exercise of the Court s discretion to extend time: 6 7 Paragraph 31 of the of the Applicant s Memorandum of Arguments. Paragraphs 28 and ff. of the Applicant s Memorandum of Arguments.
- 11 - Concise Statement of the Arguments 6. The power to extend time under special circumstances in s. 59(1) of the Act is a discretionary one. Although the Court has traditionally adopted a generous approach in granting extensions of time, a number of factors guide it in the exercise of its discretion, including: 1. Whether the applicant formed a bona fide intention to seek leave to appeal and communicated that intention to the opposing party within the prescribed time; 2. Whether counsel moved diligently; 3. Whether a proper explanation for the delay has been offered; 4. The extent of the delay; 5. Whether granting or denying the extension of time will unduly prejudice one or the other of the parties; and 6. The merits of the application for leave to appeal. The ultimate question is always whether, in all the circumstances and considering the factors referred to above, the justice of the case requires that an extension of time be granted. 8 36. The Globe and Mail, a sophisticated litigant, represented by competent counsel, chose to discontinue its revocation proceeding rather than pursue appeal routes that were available. This has entailed a delay in bringing forward the present leave application of almost 7 months from the Court of Appeal s decision dismissing the motion for leave to appeal as brought before it. 37. The explanation of the delay is far from satisfactory. 8 R. v. Roberge, [2005] 2 S.C.R. 469, para. 6 (infra, p. 20).
- 12 - Concise Statement of the Arguments 38. Moreover, the present leave application does not raise issues which this Court needs to resolve at this time. The National Post appeal before this Court may resolve many of the general issues raised here by the Globe and Mail, albeit under section 2(b) of the Canadian Charter. The specificities of the Quebec Charter and Civil Code evidentiary provisions, while arguably open on the facts of the present case, were not argued before the motions judge and have not been taken to the Court of Appeal, as suggested at least in part by the single judge of the Court of Appeal. In short, the record is at best unsatisfactory to permit fully informed debate before this Court, with no assistance of reasoning from the motions judge or the Court of Appeal. 39. Considering all those factors, the Respondent submits that leave to extend time should be denied. ----------
- 13 - Submissions on Costs PART IV SUBMISSIONS ON COSTS 40. Costs should follow the outcome of the matter. ----------
- 14 - Orders Sought PART V ORDERS SOUGHT THE RESPONDENT, THE ATTORNEY GENERAL OF CANADA, PRAYS THIS COURT TO: DISMISS the application for leave to appeal filed by the Applicant, the Globe and Mail; DISMISS the Applicant s application for extension of time to file the application for leave to appeal; THE WHOLE with costs. Montreal, Quebec, this 24 th day of April 2009 John Sims, Q.C. Deputy Attorney General of Canada Simon Ruel, Esq. Christopher M. Rupar, Esq. Counsel and Agent for the Respondent,
- 15 - Alphabetical Table of Authorities PART VI ALPHABETICAL TABLE OF AUTHORITIES Jurisprudence Paragraph R. v. Roberge, [2005] 2 S.C.R. 469... 35