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Civil Antitrust Attorneys Receive Wire-Tap Evidence

The Canada Supreme Court ruled earlier this month that civil antitrust plaintiffs may receive wire-tap evidence obtained in the criminal investigation into an alleged price-fixing scheme by several large gas companies. During the criminal investigation, the Competition Bureau of Canada intercepted and recorded more than 220,000 private communications which it used to bring antitrust proceedings against 54 persons.

Now the Court has ordered production of the recordings for the civil plaintiffs, but with limitations in order to protect the privacy interests of the persons recorded. First, the recordings will be screened to protect the privacy of third parties not involved in the proceedings. Then, the recordings will only be disclosed to the lawyers and experts participating in the civil proceedings. Furthermore, the Court found the “duty of confidentiality” imposed on the parties, their counsel, and experts would protect the right to privacy of those recorded.

Importantly, the Attorney General of Quebec, the Attorney General of Ontario, and the Director of Public Prosecutions (the Canadian equivalent of the U.S. Solicitor General) all supported disclosure of the recordings in this case as long as the disclosure process was carefully controlled. The Attorney General of Ontario was in favor of disclosure of the recordings in this case because the defendants already had access to the recorded conversations from the criminal proceedings brought against them.

The Court found that the criminal law allowing wire taps was most concerned with striking a balance between “the right of individuals to be left alone and the right of the state to intrude on privacy in furtherance of its responsibilities for law enforcement.” Here, the communications had already been intercepted—the main breach of privacy—and thus the question was only one of whether the civil parties may have access to those recordings in order to serve such legitimate purposes as “truth-finding, procedural fairness and ensuring the efficiency of the judicial process.” The Court found that a balancing of these different interests weighed in favor of disclosure, with the restrictions mentioned above.

Justice Abella, the sole dissenter, argued that wire-tap evidence should not be allowed in civil proceedings unless the conversations “ha[d] already been made public in a criminal trial, or where the targets of the interception ha[d] either consented to the disclosure or otherwise waived their privacy interests.”

Prior to this decision, the law was as Justice Abella described where civil plaintiffs only had access to criminal investigations if they were already public information. Now Canada’s Supreme Court has opened the door wide providing greater access to evidence obtained in criminal investigations. The decision is not limited to class actions or antitrust suits. The consequences may affect every civil suit where evidence from a criminal investigation could prove relevant.