FEUERHELM v ALBERTA (JUSTICE), 2017 ABQB 709
1.2: Purpose and intention of these rules
1.4: Procedural orders
3.14: Originating application evidence (other than judicial review)
5.13: Obtaining records from others
5.17: People who may be questioned
5.21: Appointment for questioning
5.23: Preparation for questioning
6.11: Evidence at application hearings
6.16: Contents of notice of appointment
6.28: Application of this Division
6.32: Notice to media
6.38: Requiring attendance for questioning
6.8: Questioning witness before hearing
8.17: Proving facts
8.8: Notice to attend as witness at trial
8.9: Requiring attendance of witnesses
The Applicant, Mr. Feuerhelm applied to set aside a Restraint Order and to stay a property disposal proceeding commenced under the Victims Restitution and Compensation Payment Act, SA 2001, c V-3.5. The police had seized cash which was allegedly acquired by the Applicant by illegal means or was an instrument of illegal activity. In obtaining the Restraint Order, the Minister of Justice and Solicitor General for Alberta (“Minister”) used information from a telephone wiretap which was authorized by the Criminal Code, RSC 1985, c C-46. The Applicant claimed that the police were required to obtain advance judicial authorization on notice to him to provide the Minister with the wiretap evidence.
Justice Eamon held that the Court had inherent jurisdiction and broad powers pursuant to Rules 1.2 and 1.4 to remedy abuses of process. Eamon J. noted that not every mechanism for access to information in civil actions require judicial authorization. His Lordship observed that differing opinions by the parties over the manner in which the Minister acquired the wiretap information was no reason to draw an adverse inference against the Minister or police. It was up to Mr. Feuerhelm to make an Application to compel disclosure under Rules 3.14(1)(c) or 6.8.
In assessing the reasonableness of disclosure in civil Actions, Justice Eamon noted that Alberta has provisions in the Rules for records disclosure by third parties including Rule 5.13. Further, Rules 6.8, 6.16, 6.38, 8.8 and 8.9 permit the Court to order the attendance of a third party to be questioned under oath as a witness in order to use a transcript of the evidence at a hearing of an Application, or to testify at Trial.
Eamon J. concluded that, on the evidence no inference could be made that the wiretap evidence was improperly or unlawfully given to the Minister. The Application was dismissed.View CanLII Details