Court File and Parties

COURT FILE NO.: CV-15-53262500-CP Reddock v. Canada (Attorney General), 2023 ONSC 3891 COURT FILE NO.: CV-17-570771-00CP DATE: 20230629

ONTARIO SUPERIOR COURT OF JUSTICE SUPERIOR COURT (Class Action Division) CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL No.: 500-06-000781-167

Between: CHRISTOPHER BRAZEAU and DAVID KIFT Plaintiffs

• and - ATTORNEY GENERAL OF CANADA Defendant Proceeding under the Class Proceedings Act, 1992

Between: ARLENE GALLONE Plaintiff c. PROCUREUR GÉNÉRAL DU CANADA Defendant

And Between: JULLIAN JORDEA REDDOCK Plaintiff

• and - ATTORNEY GENERAL OF CANADA Defendant Proceeding under the Class Proceeding Act, 1992

Date hearing/d'audience: June 26, 2023

Counsel: Gerry Antman and Karine Bédard for the Plaintiffs in Brazeau and Kift v. Attorney General of Canada H. Michael Rosenberg, Adam Kanji, and Jacob Klugsberg for the Plaintiff in Reddock v. Attorney General of Canada Clara Poissant-Lespérance and Zoe Christmas for the Demanderesse in Gallone c. Procureur Général du Canada Toni Abi Nasr, Eric Lafrenière, and Joseph Chan for the Defendant ou Défenderesse in: (a) Brazeau and Kift v. Attorney General of Canada; (b) Reddock v. Attorney General of Canada; and (c) Gallone c. Procureur Général du Canada

REASONS FOR DECISION/JUGEMENT

MASSE, J. and PERELL, J.

A. Introduction

[1] Pursuant to the Class Proceedings Act, 1992 [1], Justice Paul Perell of the Ontario Superior Court of Justice is case managing the Ontario class actions, Brazeau v. Canada (Attorney General) and Reddock v. Canada (Attorney General).

[2] Pursuant to the Québec Code of Civil Procedure [2], Justice Chantal Masse, of the Superior Court of Québec is case managing the Québec class action, Gallone c. Canada (Attorney General). [3]

[3] This is a jointly written decision or judgment in Brazeau, Reddock, and Gallone. While it is a jointly written decision, it may and should be read as separate decisions of the Ontario Superior Court of Justice and of the Superior Court of Québec.

[4] The motion now before the courts is brought by the Defendant, the Attorney General of Canada. The motion is for:

a. An Order directing Canada and the Correctional Service of Canada to collect the most recent contact information of UAL claimants from the Epiq database for the limited purpose of sharing this information with law enforcement, and

b. For the purposes of paragraph (a), a claimant defined as UAL (“Unlawfully at Large”) is one whose conditional release from a federal institution is suspended, cancelled, terminated or revoked, and for whom has been issued a lawful warrant of apprehension.

B. Facts

[5] In each of Brazeau, Reddock, and Gallone, the Class Members were or are inmates of penitentiaries operated by the Correctional Service of Canada (“CSC”).

[6] In each of Brazeau, Reddock, and Gallone, the Class Members were awarded a judgment for aggregate damages as a partial remedy for their unlawful placement in administrative segregation contrary to ss. 7 and 12 of the Canadian Charter of Rights and Freedoms. [4]

[7] Additionally, in each of Brazeau, Reddock, and Gallone, the Class Members were awarded damages as a full remedy for their unlawful placement in administrative segregation contrary to ss. 7 and 12 of the Charter.

[8] In each of Brazeau, Reddock, and Gallone, the Class Members were also granted judgments to have their individual damages determined.

[9] In each of Brazeau, Reddock, and Gallone, Class Counsel brought motions for court approvals of: (a) a Distribution Protocol for the Aggregate Award of Damages; and (b) an Individual Issues Protocol setting out the procedure for the individual issues determinations. In a series of orders, the courts of Ontario and Québec established one Protocol for the distribution of the judgment proceeds and for the Class Members to apply for their compensatory awards.

[10] As reflected by a series of motions and orders to revise the Protocol, a variety of complications emerged during the implementation and administration of the Protocol by Epiq, the Administrator appointed by the court. The Attorney General’s motion now before the court arises from a further complication in the implementation of the Protocol.

[11] As crafted by the parties and approved by the Courts, the administration of the Protocol involves the Class Members applying for their entitlements. Pursuant to s. 4.1 of the approved Protocol, Epiq administers a secure database that contains personal information including contact information, including addresses. This personal contact information can be updated by the Class Members.

[12] The claims form of the Protocol requires a Class Member to provide significant personal information to permit Epiq and the parties to validate the claim and to pay compensation.

[13] The claims form requires, among other things, the following information to be provided by a claimant: (a) a photocopy or scan of government issued photo identification; (b) a full name; (c) date of birth; (d) fingerprint section number; (e) mailing address; and (f) contact information of counsel if the claimant chooses not to be represented by Class Counsel.

[14] Once submitted to the Administrator, the claimants’ information is housed in a secure online database owned and operated by Epiq.

[15] The claims form does not mention any possibility that claimants’ personal information will be provided to law enforcement.

[16] One of the complications that emerged in the implementation of the protocol is that some of the Class Members who had been released from detention breached the terms of their release and become “UAL” (Unlawfully at Large). Being UAL is a criminal offence under the Criminal Code of Canada. [5]

[17] Some Class Member claimants may become and/or remain UAL during the course of the claims process. The number of UAL claimants changes daily as the UAL status of some claimants is resolved and others become UAL. In January 2023, there were approximately 30 claimants who were UAL. As of March 2023, approximately 60 claimants were UAL. The numbers fluctuate as some claimants become no longer UAL.

[18] Earlier this year, the courts of Ontario and Québec addressed this complication of UAL claimants by making an Order revising the Protocol. On January 24, 2023, following an unopposed motion brought by Canada, this Court amended the Protocol to suspend payment of damages awards to UAL claimants until their UAL status is resolved.

[19] In implementation, the CSC will advise the Administrator that a claimant has become UAL.

[20] With this complication resolved, a further complication emerged. Under the Protocol, the Attorney General has upon request access to the information on Epiq’s database. The Attorney General through the Correctional Service of Canada also has responsibilities under the Corrections and Conditional Release Act [6] to enforce the corrections process, which is designed to rehabilitate offenders but with the paramount consideration being the protection of society. The Attorney General felt that it was obliged to disclose the information in Epiq’s database about claimants classified as UAL.

[21] A few months ago, the Attorney General asked Epiq for the claims forms of the UAL claimants. Epiq refused to provide the information without a court order. Then, in what the Attorney General mistakenly anticipated would be another unopposed revision to the Protocol, he brought a motion for an Order directing Canada and the Correctional Service of Canada (CSC) to collect the most recent contact information of UAL claimants from the Epiq database for the limited purpose of sharing this information with law enforcement.

[22] The Attorney General asserted that being UAL is a criminal offence and puts the public at risk and access to the information would allow the CSC to comply with its statutory obligation to provide law enforcement with all relevant information concerning an offender’s supervision or surveillance. The Attorney General also submitted that this revision to the Protocol would enhance the administration of the distribution of judgment funds and the administration of the individual issues process of the Protocol.

[23] Class Counsel, however, vigorously opposed the revision to the Protocol.

[24] Class Counsel submitted that the proposed revision to the protocol was unnecessary and a further violation of the Canadian Charter of Rights and Freedoms as some sort of entrapment or as a violation of the Class Members’ rights under s. 8 of the Charter. Class Counsel submitted that the Attorney General and the CSC were attempting to benefit from the class action administration of a judgment and were attempting to weaponize the Protocol. Class Counsel submitted that it is improper to use the class proceedings legislation to profit from a process designed to remedy Canada’s Charter violations. Class Counsel submitted that the court’s powers to administer class actions should not be used because it was not designed to balance the Class Members’ privacy rights against society’s needs to investigate criminal offences. Class Counsel submitted that the court’s powers to manage a class action, which for example are found in s. 12 of Ontario’s Class Proceeding Act, 1992, were limited and could not be used to authorize the Order being sought by the Attorney General. Class Counsel submitted that the Class Members’ constitutional rights would be violated by the Order requested by the Attorney General.

[25] Class Counsel submits that the Attorney General’s motion should be dismissed because the Criminal Code already sets out a process for law enforcement to obtain information held by Epiq with respect to UAL claimants, and Canada has not complied with those requirements.

C. Analysis and Discussion

[26] We are of the view that some of Class Counsel’s arguments are unnecessary and unnecessarily provocative. In the immediate case, the Attorney General is to be commended not scandalized for bringing this motion. It is genuinely the case that the Attorney General has responsibilities with respect to the enforcement of the Criminal Code and the due administration of the CSC and he was not weaponizing the protocol or taking advantage of it for his own benefit.

[27] There is a class membership approaching 20,000 Class Members and approximately 11,000 of them have filed claims forms. The number of claimants that are UAL is quite small and their UAL status frequently resolves itself. During argument we were told that of the original group of claimants classified as UAL, numbering 22, only two continue to be UAL. It is somewhat preposterous to discuss entrapment and egregious violations of the Class Members’ rights when it is only a few hundred Class Members that have gone UAL and the Attorney General and the CSC genuinely have responsibilities to investigate their disappearances. That said, Class Counsel’s submissions about the administration of a civil class action distribution protocol not straying into the territory of the criminal justice system have merit.

[28] The Attorney General argued that it should have access to the information in the Administrator’s database because the Claims Form was the equivalent to a court document which under the open court system is available to the public unless a sealing order is made. That submission, however, is not correct because the Claims Form is part of the administration of a judgment and the court’s orders establishing the protocol contain provisions governing what use can be made of the information and who has access to the information. The claims form is not analogous to a claim that initiates a judicial process, and the claims form was not intended to extract information for purposes outside the administration of a class action judgment.

[29] The most salient submission by Class Counsel was their argument that the Criminal Code already sets out a process for law enforcement to obtain a production order and that is the process for the Attorney General and the CSC to utilize and not resort to the respective court’s powers to administer class proceedings.

[30] Section 487.014 of the Criminal Code sets out a process for law enforcement to obtain a production order from the court. On an ex parte application, a peace officer may seek an order requiring a person to produce a document in their possession or control – or to prepare and produce a document containing data that is in their possession or control – if the justice is satisfied by information on oath that there are reasonable grounds to believe that: (a) an offence has been or will be committed, and (b) the document or data will afford evidence respecting the commission of an offence. These production orders “compel third parties in possession of information relevant to a criminal investigation to produce and generate document and data for law enforcement agencies”. [7] (Canadian Broadcasting Corp. v. Manitoba (AG) et al., 2009 MBCA 122, at para. 24)

[31] The decision to make a production order is discretionary and a judge may decline to make the order, having regard to the constitutionally protected rights of both the target and the public. [8] (R. v. Vice Media Canada Inc., 2017 ONCA 231, at para. 24)

[32] In the immediate case, because the circumstances of the UAL arise as a complication of the administration of a class proceeding, it was appropriate for the Attorney General to bring this matter to our attention. We regard the Attorney General’s motion as being made in good faith. However, we regard it as somewhat misconceived in failing to recognize the approach of s. 487.014 of the Criminal Code.

[33] The Order being sought by the Attorney General, which ignores the procedure, is as follows:

THIS COURT ORDERS Canada and the Correctional Service of Canada “CSC” to collect most recent contact information of UAL claimants from the Epiq database for the limited purpose of sharing this information with law enforcement.

(a) For the purposes of paragraph 1. of this Order, a claimant defined as UAL is one whose conditional release from a federal institution is suspended, cancelled, terminated or revoked, and whom has been issued a lawful warrant of apprehension.

[34] We are not prepared to grant the Order as requested. The appropriate request - which we grant - is the following order:

THIS COURT ORDERS THAT subject to an Order being made pursuant to s. 487.014 of the Criminal Code of Canada, Canada and the Correctional Service of Canada “CSC” may collect and Epiq (the Administrator) may disclose the most recent contact information of UAL claimants from the Epiq database for the limited purpose of sharing this information with law enforcement.

(a) For the purposes of paragraph 1. of this Order, a claimant defined as UAL is one whose conditional release from a federal institution is suspended, cancelled, terminated or revoked, and whom has been issued a lawful warrant of apprehension. [changes underlined]

[35] The effect of this Order is that if the Attorney General obtains an Order pursuant to s. 487.014 of the Criminal Code of Canada, on a case-by-case basis, then it would be appropriate for Epiq (the Administrator) to disclose to the Attorney General the contact information of a UAL claimant for the purpose of sharing that information with law enforcement but for no other purposes.

[36] We understand that Epiq requires such an order to comply with privacy law obligations and the privacy provisions of the Protocol.

D. Conclusion

[37] For the above reasons, the Attorney General’s motion is granted on terms.

[38] We grant the motion without costs. Although, technically speaking, the Attorney General is the successful party, we could have come to the same outcome by dismissing his motion on terms. In other words, we regard the motion as a divided success for which no costs should be awarded. The motion was brought in good faith and commendably resisted in good faith, and we thank counsel for their assistance.

Masse, J. Perell, J.

Released: June 29, 2023

Footnotes

[1] S.O. 1992, c. 6. [2] CQLR, c. C-25.01. [3] C.S.Q Court File No.: 500-06-000781-167. [4] Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. [5] R.S.C., 1985, c. C-46. [6] S.C. 1992, c. 20. [7] Canadian Broadcasting Corp. v. Manitoba (AG) et al., 2009 MBCA 122, at para. 24. [8] R. v. Vice Media Canada Inc., 2017 ONCA 231, at para. 24.