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CROWN - Ombudsmen

Wednesday, May 24, 2017 @ 9:18 AM  

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Appeal by the Ombudsman from a decision dismissing its application to revoke a Production Order and issuing a revised Production Order. The appellant had investigated a complaint that the Cumberland Regional Development Authority had submitted false or improper information for project claims. After a forensic audit, the matter went to the police. Police served the appellant with a Production Order requiring the appellant to produce all documents and data relating to the appellant’s Final Report, including interview materials, documents gathered during the Ombudsman’s investigation and documentary or electronic correspondence. The appellant applied to court to revoke the Production Order on the basis that the information was protected from disclosure by law. The judge found that while the appellant’s information was protected from disclosure by law, s. 487.0193(4) of the Criminal Code gave her discretion to vary, rather than revoke, the Production Order. The Varied Production Order required only that the appellant produce a summary of information that suggested knowledge of false claims and the number of individuals from the Government’s Department who provided information to the appellant. Names of informants and texts of statements were not producible. The application judge upheld the order finding that the judge did not err in the exercise of her discretion.

HELD: Appeal dismissed. The reviewing judge and issuing judge correctly ruled that the phrase “otherwise protected from disclosure by law” under s. 487.0193(4)(b) of the Criminal Code encompassed the protection set out in the provisions from the Ombudsman Act. The protection, however, was merely partial and discretionary and not, as the appellant argued, absolute and mandatory. Neither statute nor case law supported the interpretation of “may revoke or vary” as meaning “must revoke”. The judge had discretion to vary. There was no basis to overturn the Varied Production Order. The order allowed police to perceive gaps in their own investigation that the officers could then address directly with witnesses, without enlisting the appellant as the police’s interviewing agent.

R. v. Nova Scotia (Ombudsman), [2017] N.S.J. No. 130, Nova Scotia Court of Appeal, J.E. Fichaud, M.J. Hamilton and P. Bryson JJ.A., April 21, 2017. Digest No. TLD-May222017004