The lead counsel of a commission of inquiry into allegations of corruption in Quebec’s construction industry inadvertently found himself in the spotlight over a thorny legal question surrounding the immunity of witnesses who testify before the inquiry.
Sylvain Lussier, lead Commission counsel of the Charbonneau Commission, said early this week that the sworn testimony of witnesses who testify during public inquiries cannot be used against them in criminal proceedings. But the same may not hold true for civil proceedings.
He then backtracked after his team ostensibly examined the jurisprudence, and asserted that witnesses are protected from civil suits.
Except that Lussier said nothing new.
In a story I wrote about the very subject, Lussier told me that the testimony provided by witnesses before commissions of inquiries can be used in civil proceedings. In fact that’s exactly what he did when he was retained by the federal government to manage the litigation phase for the recovery of funds pertaining to the infamous sponsorship scandal.
Here are the relevant passages of the story I wrote:
In Quebec, it is possible that a judge may hold that a “clear admission of responsibility” made during a commission of inquiry may be introduced as evidence. Under s.2850 of the Civil Code of Quebec, an admission is the acknowledgment of a fact which may produce legal consequences against the person who makes it.
“A clear admission of responsibility made before a commission of inquiry may be introduced in civil proceedings in Quebec because the Civil Code states that it is possible to introduce admissions as evidence,” said a Canadian lawyer specializing in public inquiries who spoke on condition of anonymity.
That’s exactly what Lussier did in the Canada (Procureur général) c. Brault 2006 QCCS 999. In interim rulings rendered by Quebec Superior Justice Gilles Hébert as case management judge in the sponsorship case, some admissions that were made during the Gomery Commission, formally the Commission of Inquiry into the Sponsorship Program and Advertising Activities, were allowed to stand.
“I myself used what was said in the Gomery Commission against civil defendants and was vindicated by Justice Hébert,” said Lussier, adding that in his own opinion s. 13 of the Canadian Charter does not grant protection against self-incrimination in civil proceedings. Though on less solid ground because of the absence of precedence, Lussier also believes that witnesses who slander while providing testimony before a commission of inquiry cannot hide behind the shield of immunity.
Another lawyer familiar with the inner workings of public inquiries notes that while the Canadian and Quebec Charter as well as the Quebec Act respecting public inquiry commissions provides protections against self-incrimination, it does not necessarily preclude the testimony provided by other witnesses during a commission of inquiry from being used against a person facing a civil trial.
“That is not a case which involves protection against self-incrimination but rather an issue that deals with the admissibility of evidence,” said the lawyer who spoke on condition of anonymity. “It is simply information that can be used against someone in a civil proceeding.”
Here’s one more interesting observation Lussier shared with me at the time.
“You can sue for defamation for slanderous procedures. Lawyers and clients do engage their liability if they write defamatory procedures. The fact that it’s in court does not grant immunity from defamation suits. So why would something slanderous being said before a commission (of inquiry) be immune from ulterior prosecution.
“The only place where you would get immunity is in Parliament. That’s why people want to testify before Parliament because you can’t use what they said.”
There are yet more nuances that need to be considered. Transcripts of sworn testimony before a public inquiry cannot be introduced as evidence in a civil proceeding. “The rules of evidence in a commission of inquiry are very slack,” told me a public inquiry expert. “There are really no standards that exist.” Of course, there are exceptions such as when a witness has passed away, and even then the use of transcripts must be approved by a judge.
But that doesn’t mean the transcripts of sworn testimony cannot be used in other ways. Lawyers can use transcripts to help them prepare their case or use it to help them during the discovery process. “There is a world of a difference between introducing the transcripts of sworn testimony and using that information to prepare the case. There are no obstacles that prevent someone from doing that,” added the expert.
Witnesses in public inquiries can be caught in a tight bind. Though they may be vulnerable to civil suits, they have no choice but to testify. As Lussier told me, witnesses “can be jailed and cited for contempt if they refuse to answer.”