Attention: Ms. Carol Ann Hartung, Registry Officer
Re: Warman v. Lemire, Tribunal No. T1073/5405
To the Tribunal:
1. Untimely Disclosure of Jadewarr and Police Materials:
I have the first letter of Ms. Blight of May 7th. In that letter the Commission acknowledges that “the disclosure of the jadewarr materials ought to have been made before March 25, 2008.”
Hundreds of pages have now been disclosed, not only with respect to the “Jadewarr” questions, but also with respect to the police questions, which were the subject of the judicial review to the Federal Court on January 15, 2008 and the order of the Tribunal of August 16, 2006.
I want this Tribunal to imagine how different the examinations of Richard Warman, Dean Steacy and Harvey Goldberg would have been had this information been disclosed when it should have been disclosed, which was in 2006.
The prejudice is simply extraordinary. And the prejudice is not only to the respondent but also to the public interest since the public has a right to know if constitutional guarantees have been compromised.
I was handed a bundle of emails of Dean Steacy’s “Jadewarr” email account on March 25, 2008 by Ms. Blight and never had the opportunity to study those documents or to question Mr. Steacy on them. I have now been provided with hundreds more documents which I should have been able to question him about.
I have still never received any documents about the other persona and email account revealed in his testimony that day, namely, Odensrevenge, except what appears to be registration acknowledgments.
I would not be protecting my client’s interests without making it clear that the only way this prejudice can be even partially alleviated, is by the recall of Mr. Steacy. The Commission acknowledges that these documents should have been disclosed prior to the hearing in March. It cannot complain if the witness must be recalled to deal with the issues arising out of them.
I will be making further submissions on this after the Tribunal’s ruling with respect to the redactions.
2. Disclosure and the August 16, 2006 Tribunal Order:
The Commission submits that the disclosure did not fall within the August 16, 2006 order. That is patently ridiculous. The order stated “all documents’ and was not restricted to general files. The police documents should have been disclosed in 2006.
When questions were asked of Dean Steacy regarding relations with police, the Commission claimed section 37 of the Canada Evidence Act and the respondent was forced to go to the Federal Court to obtain those answers.
It is submitted that the Commission is fully aware that in this particular area, the unintended effects of section 13 on the rights of Canadians have been severe and it has tried valiantly to stop this evidence from being put before this Tribunal.
Proper disclosure has not been made. The Tribunal got a taste of the type of redactions made with the documents filed before it on March 25th. At that time, the Tribunal made the comment that it was up to the respondent to demand full disclosure.
He is making that demand now for these documents.
It is clear from some of the documents that material parts have been whited out. Other parts have large areas blacked out.
The Commission simply states that all of this relates to private information. I cannot tell from the documents is that is true and I should not have to rely on the word of the Commission.
Further, there can be no expectation of privacy for persons who are acting in an official capacity with police and other government agencies, nor can there be for the complainant if his name and email are included.
In L.L.A. v. A.B.  4 S.C.R. 536, the Supreme Court set out the test elaborated in Wigmore:
In a case-by-case privilege, the communications are not privileged unless the party opposing disclosure can show they should be privileged according to the fourfold utilitarian test elaborated by Wigmore (Evidence in Trials at Common Law (McNaughton rev. 1961), vol. 8, at [sec.] 2285). These criteria are:
· (1) The communications must originate in a confidence that they will not be disclosed.
· (2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.
· (3) The relation must be one which in the opinion of the community ought to be sedulously fostered.
· (4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.
[Emphasis in bold added]
In criminal proceedings, all of these documents would be disclosed fully. There can be no expectation of privacy whatsoever when the rights of Canadians subject to proceedings under section 13 are involved and persons are acting in their official capacity. Without this first branch of the Wigmore test fulfilled, there is no need to even consider the rest.
The expectation of privacy cannot be applied to police officers and investigators with the Commission, carrying out official duties or any other individuals involved in these investigations.
And Ms. Blight cites no case law where this has been done. She had provided no authority to you to allow these redactions to stand.
The respondent is entitled to see the documents in their original form with no redactions.
This applies as well to the documents disclosed in Ms. Blight’s letter of May 7, 2007. Overwhelmingly, the redactions have been retained. The only privilege claimed is a right to privacy. Again, no expectation of privacy exists in these circumstances.