[1]                The Prosecution appeals from a judgment rendered on July 19, 2022 and rectified on August 17, 2022, by the Court of Québec, Criminal and Penal Division, District of Montreal (the Honourable Julie Riendeau).[1]

[2]                The judgment ordered a permanent stay of proceedings against the respondent who was charged with one count of sexual assault against a former patient.

[3]                For the reasons of Cournoyer, J.A., with which Hamilton and Moore, JJ.A., concur, THE COURT:

[4]                ALLOWS the appeal;

[5]                QUASHES the stay of proceedings;

[6]                ORDERS the parties to proceed to trial.

I - Overview

[7]                Under our laws, the coexistence of parallel proceedings under the Professional Code and the Criminal Code arising out of the same facts is possible.

[8]                While it is accepted that “[a] single act may have more than one aspect, and it may give rise to more than one legal consequence”,[2] some protective measures circumscribe the interrelation between a non-criminal proceeding and a criminal prosecution that occur contemporaneously.

[9]                First, the stay of a parallel proceeding, such as a disciplinary proceeding, pending the resolution of criminal charges may be granted, but only in exceptional cases. Indeed, potential disclosure through parallel non-criminal proceedings – including a disciplinary hearing during which the nature of an accused’s defence or self-incriminating evidence may be revealed – is not considered sufficiently exceptional to justify a stay of the non-criminal proceedings. Indeed, there is a presumption that the criminal proceedings can be conducted fairly unless shown otherwise.

[10]           Second, when someone is compelled to testify in parallel non-criminal proceedings, the principle against self‑incrimination provides three procedural safeguards in relation to criminal proceedings: (1) use immunity; (2) derivative use immunity; and, in rare cases, (3) constitutional exemption from the compulsion to testify.

[11]           Third, the prior testimony given in a disciplinary proceeding by a professional who was not under testimonial compulsion cannot be used as incriminating evidence at a criminal trial, though such prior testimony can be used to impeach the accused’s credibility.

[12]           Fourth, in some cases, various confidentiality orders may be issued in the disciplinary context to protect the constitutional rights of an accused, notably through publication bans.

[13]           In this case, various confidentiality orders were made by the disciplinary council that tried and convicted Mr. Zarow for disciplinary offences.[3]

[14]           The issue is whether the syndic’s transmission of the disciplinary council’s decision finding Mr. Zarow guilty – in clear violation of the confidentiality orders – to a police investigator, and through her to the prosecutor who was in charge of the criminal case against Mr. Zarow, as well as to the complainant, constituted an abuse of process justifying a stay of proceedings of the criminal sexual assault charge against him.

[15]           For the following reasons, I am of the view that the case management judge’s[4] decision to stay the criminal charge against Mr. Zarow was premature. The stay of proceedings should be quashed and a trial on the merits of the charge of sexual assault should be held.

[16]           Any potential prejudice resulting from the improper and illegal transmission of the disciplinary council’s decision should be appraised, if necessary, after the complainant testifies or at the end of the prosecution’s case.

II - The facts and procedure

[17]           A brief outline of the facts and the procedural unfolding of the case will suffice. I find it unnecessary to delve deeply into many of the parties’ respective submissions because it is foreseeable that many of the arguments will be raised again if another stay of proceedings motion is presented at trial. I will limit my comments to what is strictly essential to decide the appeal.

[18]           In June 2020, Mr. Zarow was charged under the Professional Code with three counts of professional misconduct, including one involving sexual misconduct towards his patient, the complainant.

[19]           In August 2020, he was also charged with sexual assault against the complainant, contrary to s. 271 of the Criminal Code.

[20]           Throughout the criminal investigation, he exercised and maintained his right to silence.

[21]           On February 12, 2021, at the outset of the disciplinary hearing, the disciplinary council ordered Mr. Zarow’s testimony to be heard in camera. The council also issued a publication ban, a non-disclosure order and a ban forbidding the release of any information concerning Mr. Zarow’s defence, including the submissions made by counsel, until the end of the criminal proceedings. For the sake of brevity and simplicity, I will refer to these orders as confidentiality orders.[5]

[22]           These confidentiality orders were sought and issued to protect Mr. Zarow’s right to a fair trial, his right against self-incrimination, and his right to silence.

[23]           On November 24, 2021, the disciplinary council found Mr. Zarow guilty on all counts, including the sexual misconduct towards the complainant, which is the subject of the criminal charge of sexual assault.

[24]           Despite the confidentiality orders, the syndic of the Ordre des chiropraticiens du Québec transmitted the council’s decision finding Mr. Zarow guilty to the police investigator and to the complainant. The prosecutor received the decision from the police investigator. The decision regarding disciplinary sanctions was also sent both to the investigator and to the complainant.

III - Judgment under appeal

[25]           After a brief statement of the relevant facts,[6] the case management judge summarized the question before her as follows: keeping in mind that a stay of proceedings may only be ordered where no other remedy will ensure the protection of an accused’s right to a fair trial, is a stay warranted under the circumstances?

[26]           She began her analysis by reviewing the abuse of process test articulated in R. v. Babos.[7]

[27]           She inferred from the prosecution’s arguments that it admitted that the prejudice would be ongoing if nothing were done.[8]

[28]           Proceeding to the second stage of the inquiry, the judge remarked that it was necessary to determine whether another remedy might cure the prejudice caused to Mr. Zarow.[9]

[29]           The judge stated that alternatives to a stay of proceedings were possible in order to cure the prejudice caused by the transmission of the disciplinary decision to the prosecution and to the investigator.

[30]           She noted that the investigator was immediately taken off the case once the prosecution notified her that she was in possession of a document that she should not have had. No other meetings were held with the complainant and no other investigatory steps were undertaken after the initial completion of the investigation in 2020. The prosecution also undertook not to adduce in evidence the statement that Mr. Zarow made to the investigator during questioning.[10]

[31]           Furthermore, the prosecutor had no contact with the complainant and was to be replaced by another one from a different district. The file was transferred to an assistant chief prosecutor. The decisions of the disciplinary council and all references to them were expunged from the file. The prosecution further proposed an undertaking that would require putting in place a Chinese wall.[11]

[32]           The judge concluded that the remedy proposed by the prosecution was sufficient to address the ongoing prejudice caused by the transmission of the disciplinary decision. Indeed, she concluded that entrusting the case to a prosecutor without any prior connection to the file would obviate the danger of unfairness posed by the prosecution having prior knowledge of Mr. Zarow’s intended defence.[12]

[33]           In light of that finding, she also concluded that the question of determining whether the investigator had in fact taken cognizance of the disciplinary council’s decision was unnecessary.[13]

[34]           The judge then turned her mind to the prejudice caused by the transmission of the disciplinary council’s decision to the complainant. She found that no remedy other than a stay of proceedings would suffice to cure the ongoing trial unfairness caused to Mr. Zarow. In her opinion, it would be difficult, if not impossible, to properly assess the unfairness caused by the complainant having knowledge of Mr. Zarow’s defence.[14]

[35]           While the judge acknowledged the prosecution’s submissions regarding balancing at the third stage of the inquiry, she remarked that the third and final step will often add little to the inquiry, as society has no interest in unfair trials.[15]

[36]           In her view, no other remedy could redress the ongoing unfairness caused to Mr. Zarow, and she concluded that nothing short of a stay of proceedings could be ordered.[16]

[37]           Finally, while the judge was aware of the prosecution’s submission that a decision concerning a stay should be postponed until the complainant finished testifying and should not be made prematurely,[17] she did not explain her decision to rule immediately on the motion, beyond her stated conclusion that the prejudice was irreparable.

IV - Questions on appeal

[38]           The prosecution raises the following two grounds in its brief:

1. Did the case management judge err in concluding that the respondent’s rights to a fair trial and right to silence were infringed?
2. Did the case management judge err in ordering a stay of proceedings as a remedy based on s. 24(1) of the Charter?

[39]           Mr. Zarow raises a discrete third ground,[18] which can be reformulated as follows:

3. Did the case management judge err in concluding that the ongoing prejudice caused by the investigator’s conduct could be cured by a remedy other than a stay of proceedings?

V - Position of the parties

A.    The prosecution

[40]           The thrust of the prosecution’s appeal is that the case management judge erred in finding that the transmission of the disciplinary council’s decision to the complainant infringed upon Mr. Zarow’s rights and, further, that the stay of proceedings was ordered prematurely. Unsurprisingly, the prosecution does not challenge the judge’s decision to disqualify the police investigator and the prosecutor in charge of Mr. Zarow’s prosecution, a remedy it had suggested to the judge.[19] In the prosecution’s view, this less draconian remedy would have sufficed.

B.    Mr. Zarow

[41]           Mr. Zarow’s position is forcefully put forth in his appeal brief:

[1] From the beginning of the investigation, [Mr. Zarow] exercised his right to silence. He was interrogated for approximately an hour and a half by S/D Ouellet. Although the investigator persisted by all means (including illegal means) to obtain his defence, [Mr. Zarow] repeated thirty-seven times that he wished to remain silent.

[2] Right at the outset of the disciplinary hearing, [Mr. Zarow] requested an in camera hearing for his testimony, a publication ban, a non-disclosure order and a ban to release any information concerning the defence, including the representations made by counsel, until the end of the criminal proceedings. This request was granted by the Disciplinary Board.

[3] With these confidential orders rendered to protect his right to a fair trial, his right against self-incrimination and his right to silence, [he] testified before the Disciplinary Board on April 9 and April 27, 2021. Before the beginning of his testimony, he reiterated the request that his testimony and his defence be confidential to protect his right to a fair trial in the criminal proceedings.

[4] Despite all his attempts to protect his Charter rights to a fair trial, notably the right to silence and the right against self-incrimination, his defence and defence strategy was given to the investigator, the Crown and the complainant.

[…]

[40] When the police, the Crown and the complainant received the unredacted decision rendered by the Disciplinary Board, they were in possession of [Mr. Zarow’s] evidence and defence strategy.

[41] Once the Crown, the police and the complainant are in possession of [Mr. Zarow’s] evidence and strategy, there is prejudice to [his] right to a fair trial that will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome.

[42]           In relation to the two grounds raised by the prosecution, Mr. Zarow contends that the case management judge made no reviewable error. However, he further argues that the judge did err in failing to conclude that the prejudice caused by the police investigator’s conduct also justified a stay of proceedings.

VI - Analysis

A.    Standard of review

[43]           The standard of review applicable to a stay of proceedings was described by Moldaver J. in Babos.[20] An appellate court’s intervention will be warranted where a judge (1) misdirects him or herself in law, (2) commits a reviewable error of fact (i.e., palpable and overriding error[21]), or (3) renders a decision that is so clearly wrong as to amount to an injustice.

B.    Was there irreparable prejudice to Mr. Zarow’s right to a fair trial?

1-     Introduction

[44]           I am of the view that the prosecution was right to argue before the case management judge that a stay of proceedings was premature. The evaluation of the prejudice caused by the disclosure of the disciplinary council’s decision to the prosecutor, the police investigator and the complainant, as well as whether a stay of proceedings was warranted in the circumstances, should have been made at trial.

[45]           Under the principles established in R. v. La,[22] the evaluation of prejudice caused by the disclosure of the disciplinary council’s decision should have waited at least until the complainant finished testifying or the end of the prosecution’s case. It was much too early to rule on Mr. Zarow’s motion.

[46]           However, before addressing why this is so, I must first explain that the parties proceeded to argue the motion presented by Mr. Zarow on two mistaken assumptions.

[47]           Then, in order to put the issues raised in this appeal into the proper perspective, it is essential to discuss the rules governing proceedings that are held in parallel to a criminal prosecution concerning the same facts or related facts. 

[48]           Since Mr. Zarow argues that accused persons have a broad and general right to prevent the prosecution from learning the substance of their defence and version of the events, it is fundamental to canvass the law applicable to such situations in order to decide whether, in the case at bar, an irreparable prejudice existed or whether the assessment of the existence of a prejudice to Mr. Zarow’s right to a fair trial needed to be postponed until after the complainant had testified. 

[49]           I must now determine whether the judge should have read the disciplinary council’s decision.

2-     Was it necessary to read the disciplinary council’s decision?

[50]           When the motion was argued, the parties jointly agreed that the case management judge should not read the disciplinary council’s decision. They were mistaken in that regard.

[51]           In my view, it is obvious that to properly assess whatever prejudice could flow from the transmission of the decision, the judge should have read the decision before ruling on the motion. This conclusion is fortified and confirmed, as we have now read the decision.[23] In all fairness to the judge, however, I must underline that she adopted the course of conduct jointly suggested to her by the parties.[24]

[52]           The parties were also under the wrong impression that if the judge had read the decision, it would jeopardize the possibility that she could preside over the forthcoming trial because she would have been privy to Mr. Zarow’s defence.

[53]           Judges regularly disabuse themselves of such information in making admissibility rulings, as Sopinka J. noted in R. v. Stinchcombe:

The trial judge ought to have examined the statements. The suggestion that this would have prejudiced the trial judge is without merit. Trial judges are frequently apprised of evidence which is ruled inadmissible. One example is a confession that fails to meet the test of voluntariness. No one would suggest that knowledge of such evidence prejudices the trial judge. We operate on the principle that a judge trained to screen out inadmissible evidence will disabuse himself or herself of such evidence.[25]

[54]           The case management judge should have read the decision before ruling on the motion. By not reading it, she was deprived of important and relevant information.

3-     Parallel proceedings and the disclosure of an accused’s defence

[55]           The parties debated the motion relying almost entirely on this Court’s decision in R. c. Couche-Tard[26] and the judge, understandably, ruled on that basis.

[56]           Couche-Tard concerned a situation where the prosecution repudiated a plea agreement in a gas-pump price-fixing scheme – after having been privy to the defence and the expert evidence of one company in the context of the plea discussions – and then decided to lay a charge against a related corporate entity.[27]

[57]           However, contrary to the position put forward by Mr. Zarow, I am of the view that Couche-Tard does not purport to establish an airtight and general principle of law that a presumption of prejudice always flows from the prosecution learning the accused’s version of events through parallel proceedings and would always result in a stay of proceedings. I have not found any decision supporting such a broad principle.

[58]           Indeed, while not completely irrelevant, Couche-Tard does not address the issue raised in this case: whether, in the context of parallel proceedings, a fair criminal trial may be held for Mr. Zarow after disclosure of the disciplinary council’s decision to the police investigator, the prosecutor and the complainant.

[59]           The relevant set of principles are those enunciated in a long line of cases addressing the context of proceedings (including civil trials, disciplinary hearings, commissions of inquiry) on the same facts (or closely related facts) held in parallel to ongoing criminal charges.

[60]           Accordingly, to decide whether the stay of proceedings was premature in this case, as the prosecution argues, a proper understanding of these principles is essential.

[61]           These principles include: (1) determining whether a stay of proceedings parallel to a criminal prosecution may be granted to prevent the disclosure of the accused’s defence in those other proceedings; (2) considering the constitutional safeguards protecting the principle against self-incrimination; and (3) determining whether publication bans and confidentiality orders should be issued in disciplinary proceedings to prevent the disclosure of an accused’s defence or version of events that are the subject of a criminal charge.

(a) Stay of parallel proceedings to prevent the disclosure of the accused’s defence

[62]           Any discussion of parallel proceedings must start with the seminal case of Stickney v. Trusz.[28] In that case, Zuber J. (as he then was) refused to stay a civil action because of related criminal charges and formulated the following test:

However, whatever may be said about the origin of the language, the weight of authority, at least in Ontario, is that the discretion to stay an action should be exercised in extraordinary or exceptional cases. In any event, it would appear that the difference in terminology is more apparent than real. Since there is now no general rule that civil cases must be stayed because of criminal charges arising out of the same facts, and since the matter is now within the discretion of the Court, it is obvious that it is incumbent upon the applicant to show some reason why the discretion should be exercised. In that sense he must demonstrate that his case is an exception or a case other than ordinary.[29]

[Emphasis added]

[63]           Stickney was followed by the Ontario Court of Appeal in Nash v. Ontario[30] and Schreiber v. Canada,[31] as well as by this Court in Obadia c. Sam Levy & Associés Inc.[32]

[64]           In Nash,[33] the Ontario Court of Appeal stated that the potential disclosure of an accused’s defence or self-incriminating evidence in civil proceedings is not, in and of itself, sufficient to warrant the stay of those proceedings pending the resolution of the criminal charges:

[14] As to issue (4), no general rule in this jurisdiction requires a stay of civil cases merely because criminal charges relating to the same matter are pending. In fact, a court will normally deny a stay unless the applicant demonstrates that his or her case is an extraordinary or an exceptional one: see Stickney v. Trusz (1973), 2 O.R. (2d) 469 at p. 471, 45 D.L.R. (3d) 275 (H.C.J.), affirmed (1974), 3 O.R. (2d) 538 at p. 538, 46 D.L.R. (3d) 80 (Div. Ct.), affirmed (1974), 3 O.R. (2d) 538 at 539, 46 D.L.R. (3d) 80 at 82 (C.A.), leave to appeal refused [1974] S.C.R. xii, 28 C.R.N.S. 127n.

[…]

[16] The cases are clear that the threshold test to be met before a stay is granted is high. The mere fact that criminal proceedings are pending at the same time as civil proceedings is not sufficient ground for a stay of the latter: Stickney v. Trusz, supra. Even the potential disclosure through the civil proceedings of the nature of the accused’s defence or of self-incriminating evidence is not necessarily exceptional: see Belanger v. Caughell, supra; Stickney v. Trusz, supra; Seaway Trust Co. v. Kilderkin Investments Ltd., supra. This high threshold test should not be relaxed merely [because] it is the Crown that requests the stay. An applicant, whether it is the Crown or the accused, must meet the same burden of proving extraordinary or exceptional circumstances. The test is not on a balance of convenience for the Crown and something higher for the accused. To the extent that the motions court judge held that it is, he erred.

[Emphasis added]

[65]           In Obadia,[34] this Court, relying on both Stickney and Nash, came to the same conclusion:

[11] […] [L]a Cour est d’avis que des allégations d’ordre général ne suffisent pas et qu’il incombe à celui qui demande la suspension, même si les instances sont reliées par des contextes factuels identiques, de préciser des motifs démontrant le préjudice dans la conduite de la défense au criminel.

[…]

[16] En bref, la règle n’est toujours pas la suspension et celui qui la requiert doit démontrer que les circonstances risquent de mettre en péril son droit à un procès équitable au criminel. La simple possibilité de dévoilement de la défense n’est pas en soi suffisante et ne confère pas aux circonstances le caractère exceptionnel nécessaire. Enfin il convient dans ces cas, de citer l'article 11 du Code criminel:

Aucun recours civil pour un acte ou une omission n’est suspendu ou atteint
du fait que l’acte ou omission constitue une infraction criminelle.

et de considérer comme en l’espèce, que le but des procédures en faillite n’est pas d’obtenir de la preuve pour l’instance criminelle mais bien pour la fin légitime de poursuivre la réalisation des actifs du failli.[35]

[Emphasis added]

[66]           Similarly, in Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy),[36] Cory J., on behalf of two other judges, adopted those principles where the concurrent proceedings were the hearings of a commission of inquiry and a forthcoming criminal trial:

[165] Neither the fact that an individual is subject to other judicial or state-initiated proceedings in addition to a criminal trial (Re Orysiuk and The Queen (1977), 37 C.C.C. (2d) 445 (Alta. C.A.)) nor that these proceedings may be held contemporaneously with the criminal trial (Stickney v. Trusz (1973), 2 O.R. (2d) 469 (H.C.)) precludes the fairness of that trial. As with pre-trial publicity or any other action or circumstance which is alleged to jeopardize an accused’s fair trial rights, what must be proven is not simply the act itself or the existence of the circumstances, but rather the prejudice which flows from them. That prejudice has not been demonstrated in this case. As a general rule, it is desirable that the public inquiry proceed as quickly as possible. However, in the present case, as the Attorney General has elected to proceed with and is now well into the criminal trial, I trust that such care and courtesy will be displayed by the Commission and the judge presiding at the trial that the managers and their counsel will not be unduly prejudiced by the commencement of simultaneous proceedings.

[…]

[167] Should the criminal trials of the two accused have been held simultaneously with the public inquiry they would present no more than a potential risk. That potential risk would not be enough to establish a breach of s. 11(d). To hold to the contrary would jeopardize all civil actions, administrative hearings, and professional disciplinary proceedings which relate in some manner to criminal trials and proceed contemporaneously with them.[37]

[Emphasis added]

[67]           In The Director of Child and Family Services v. JG and KB,[38] Mainella J.A. of the Manitoba Court of Appeal summarized this line of cases and underlined the presumption that parallel proceedings on the same facts can be fairly carried out:

[16] It is a fundamental principle that the law assumes that concurrent proceedings on the same facts can be conducted fairly (see Phillips v Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97 at para 165). Absent exceptional or extraordinary circumstances, a civil proceeding does not await a related criminal prosecution (see Stickney v Trusz (1973), 2 O.R. (2d) 469, at 471 (H Ct J), aff’d (1974), 3 OR (2d) 538 (Div Ct), aff’d (1974) 3 OR (2d) 538 at 539 (CA), leave to appeal to SCC refused, [1974] SCR xii; and Ma Wai Kay v McGay Limited; McGay Limited v Wong (1979), 6 Man. R. (2d) 292 at paras 12-14 (QB).

[…]

[18] When an individual faces a civil proceeding in addition to a related criminal charge, the concern that arises is whether continuation of the civil proceeding may infringe the individual’s right to a fair trial in the criminal matter if it is not adjourned or temporarily stayed (see Nash v Ontario (1995), 27 OR (3d) 1 at 7 (CA)). In such cases, the relevant inquiry for a court, in exercising its discretion as to whether there are exceptional or extraordinary circumstances to stay or adjourn a civil proceeding, relates to whether there is specific prejudice to the fair-trial rights of the applicant on the criminal charge that cannot adequately be addressed by the rules governing the civil proceeding or a remedy available to an accused in the criminal process. The threshold to justify the granting of a stay or adjournment of a civil proceeding in favour of a criminal proceeding is a “high one” (Schreiber v Canada (Attorney General) (2001), 153 OAC 137 at para 4).

[68]           In The Director of Criminal Property and Forfeiture v. Gurniak et al., Steel J.A. of the Manitoba Court of Appeal also observed that the required analysis is rooted in a presumption that the parallel proceedings can and are expected to be conducted fairly:

[39] When an individual faces a civil proceeding concurrent to a related criminal charge, the concern that arises is whether continuation of the civil proceeding may infringe the individual’s right to a fair trial in the criminal matter. In such cases, the ordinary three-part test referred to above is not used.

[40] Instead, the relevant test for a court, in exercising its discretion, is whether there are exceptional or extraordinary circumstances which show that the right of the applicant on the criminal charge cannot adequately be addressed by the rules governing the civil proceeding or a remedy available to an accused in the criminal process (see Lieu). There is no presumption in favour of a stay solely from the fact that concurrent criminal charges are pending. Indeed, the presumption is exactly the opposite. The law assumes that concurrent proceedings can be conducted fairly unless shown otherwise.[39]

[Emphasis added]

[69]           Finally, in her conclusion, Steel J.A. underlined that it is expected that criminal courts will provide the necessary protection to the accused if needed:

[83] Civil and criminal actions are distinct proceedings. There are different parties, with different purposes and different standards of proof. The Court should not order a stay of proceedings as soon as there is the slightest risk that evidence will be revealed. The case law in this area is clearly to the effect that a criminal court has the means to protect the rights of an accused and, in this case, the defendants.

[70]           From this review, I cannot see how one could conclude that the disclosure of the disciplinary council’s decision established a breach of trial fairness so irreparable that a stay of the criminal proceedings was necessary without first demonstrating that a real and concrete prejudice resulted from the transmission of the decision.

[71]           The abuse of process test requires “prejudice to the accused’s right to a fair trial […] that ‘will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome’”.[40] The “concern is whether there is ongoing unfairness to the accused”.[41] Further below, I will address the fact that the disclosure of the disciplinary council’s decision by the syndic (not a state actor involved in the criminal prosecution against Mr. Zarow) was made in violation of the confidentiality orders and whether this should have been considered in ruling on the motion for a stay of proceedings.

[72]           The parties were wrong to argue the motion on the basis of a presumption of prejudice similar to the ones applicable in the context of solicitor-client or litigation privilege, or the one discussed in Couche-Tard. In many situations, the presumption of prejudice exists in part because the court is faced with the dilemma whereby “to explore the matter in depth may require the very confidential information for which protection is sought to be revealed”.[42]

[73]           In this case, there is no difficulty in assessing whether the prejudice is already irreparable. The prejudice can be assessed by the mere reading of the decision, as we have done. The disclosed information is known, finite and accessible. The decision merely summarized Mr. Zarow’s testimony and defence.

[74]           In any case, in most situations involving a question of privilege, where presumed prejudice is not rebutted, it results in the disqualification of a lawyer or the firm. But where a stay of criminal charges is sought, the assessment of prejudice is qualitatively different under the Babos test because of the need to weigh society’s interest in a trial on the merits. Hence, as Armstrong J.A. aptly observed in R. v. Bruce Power Inc., “[c]ommon sense suggests that every breach of solicitor-client privilege does not attract the ultimate remedy. Some breaches of privilege are trivial and would not call for a stay of proceedings”.[43]

[75]           I hasten to add that I am not suggesting that the transmission of the council’s decision was trivial. Nonetheless, whether a prejudice was established by Mr. Zarow needed to be considered. Moreover, such a determination, in my view, should not have been made prematurely.

[76]           While a presumption of prejudice was applied in Couche-Tard, its nature was carefully delineated by Savard J.A. (as she then was):

[35] Le fait qu’en l’espèce l’obtention des moyens de défense de l’intimée ne soit pas le résultat d’une violation d’un droit protégé, comme c’est le cas en matière de violation du secret professionnel, ne justifie pas, selon moi, une conclusion différente quant à l’existence d’une présomption de préjudice. Certes, un accusé ne bénéficie pas d’un « droit » à une entente sur le plaidoyer, ni d’une protection constitutionnelle à l’encontre de sa répudiation. Toutefois, contrairement à ce que plaide le ministère public, ce n’est pas la divulgation en soi des moyens de défense de l’intimée qui lui cause préjudice, mais plutôt la décision du ministère public de déposer des accusations après les avoir obtenus conformément à l’entente sur le plaidoyer avec Alimentation ultérieurement répudiée. Dans un tel contexte, il est légitime de présumer que l’équilibre entre le ministère public et l’accusé à la base de notre système de justice criminelle est modifié, en faveur du premier et, conséquemment, au détriment du second.

[Emphasis added]

[77]           Whatever prejudice may have derived from the transmission of the decision to the police investigator, the prosecutor and the complainant, it must be identified and must go beyond the mere disclosure of the decision. Cory J. underlined this in Westray: “As with pre-trial publicity or any other action or circumstance which is alleged to jeopardize an accused’s fair trial rights, what must be proven is not simply the act itself or the existence of the circumstances, but rather the prejudice which flows from them” [Emphasis added].[44]

[78]           Before ordering a stay of the criminal charge against Mr. Zarow, it was necessary to determine whether there was indeed a prejudice to his right to a fair trial because of an unfair advantage or change to the police investigation,[45] or an unfair change of strategy by the prosecution at trial,[46] or because the complainant was tainted by the transmission of the decision.

[79]           Moreover, with respect to prospective prejudice to a Charter right, the burden is quite demanding as “relief will only be granted in circumstances where the claimant is able to prove that there is a sufficiently serious risk that the alleged violation will in fact occur”.[47]

[80]           When assessing the prospective breach of Mr. Zarow’s right to a fair trial, caution must be taken to avoid speculative reasoning. As Cory J., writing in Westray,[48] pointed out, this is of prime importance, and any potential breach of the s. 11(d) fair trial right is best determined at the time of trial:

[110] Frankly, I cannot see much difference between the test of “high degree of probability” and that of “a real and substantial risk”. The essence of both tests is that before a court will restrain government action, it must be satisfied that there is a very real likelihood that in the absence of that relief an individual’s Charter rights will be prejudiced. This determination cannot be made in the abstract. Rather, the proper approach should be a contextual one, which takes into account all the surrounding circumstances, including, for example, the nature of the right said to be threatened and the extent to which the anticipated harm is susceptible of proof. This was the method advocated by Wilson J. in Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326. The nature and importance of the government action sought to be restrained is also a significant factor but it should be considered under s. 1 of the Charter.

[111] Thus the applicable standard may fluctuate between the requirement of “a real and substantial risk”, “a high probability” or even a “virtual certainty” of a Charter breach depending upon all the circumstances presented by the particular case and the particular applicant.

[112] In assessing a threatened breach of s. 11(d) of the Charter, it must be remembered that the right to a fair trial is of fundamental importance to the criminal process. This Court has already decided that the question of a breach or potential breach of the s. 11(d) fair trial right is best determined at the time of trial: Vermette, supra, at p. 992. While this is not an absolute rule, it is a factor which complicates the task of an individual seeking to establish a prospective breach of the section as it requires a court to speculate as to whether or not the right to a fair trial will be violated when, in the future the criminal charges against the accused are brought to trial. Because it is an exercise in speculation, it will be difficult for the applicant to demonstrate the high degree of probability that a Charter breach will occur which is required to warrant relief being granted. As well it must be remembered that an applicant will always have the opportunity to apply for relief to the trial court once the prejudice, flowing, for example, from the publicity, is more easily ascertainable and demonstrable.

[Emphasis added]

[81]           These observations are pertinent regardless of whether or not criminal charges have already been filed, and whether or not the anticipated violation of the right to a fair trial stems from pre-trial publicity or from the disclosure of an accused’s defence in parallel proceedings.

[82]           Without an identified prejudice, it is difficult to conclude that the transmission of the decision establishes a prospective prejudice to Mr. Zarow’s right to a fair trial – under the main category of the abuse of process doctrine – that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome”.[49]

[83]           The disclosure of an accused’s version of events in proceedings other than the criminal case is, in some circumstances, an inevitable consequence of our system’s acceptance of parallel proceedings.

[84]           There are indeed other situations where the prosecution becomes privy to the accused’s version of the events prior to trial. One such scenario is where persons separately charged with an offence, and persons suspected of an offence, are compelled as witnesses at the preliminary inquiries and criminal trials of other persons charged with the same offence. Those situations are constitutionally acceptable “unless it is established that the predominant purpose in compelling the testimony is incrimination of the witness” or “is a form of proposed pre-trial interrogation”.[50]

[85]           I use this example only to show that there is no broad and inflexible rule which posits that, whenever the state indirectly learns of the accused’s defence prior to trial, a stay of proceedings must necessarily be imposed. For a court to order such a remedy, it is essential that a concrete prejudice to the right to a fair trial be established.

[86]           This review of the law leads me to conclude that it is hardly surprising that “the courts generally take the position that the disciplinary proceedings can take place prior to the criminal proceedings, and that there are sufficient safeguards in the criminal justice system to protect the accused”.[51]

[87]           I now turn my focus to the safeguards alluded to above, which were developed to protect the principle against self-incrimination in the criminal justice system and which are also available to Mr. Zarow.

(b) Protection of the principle against self-incrimination

[88]           The principle against self-incrimination is “an overarching principle within our criminal justice system”[52] but it does not provide “absolute protection for an accused against all uses of information that has been compelled by statute or otherwise. The residual protections provided by the principle against self-incrimination as contained in s.7 [of the Charter] are specific, and contextually-sensitive”.[53] The principle “demands different things at different times, with the task in every case being to determine exactly what the principle demands, if anything, within the particular context at issue”.[54]

[89]           Where non-criminal proceedings (such as civil trials, disciplinary hearings, commissions of inquiries) are taking place concurrently with criminal charges, the protection of the right against self‑incrimination under s. 7 of the Charter is triggered where testimonial compulsion exists.

[90]           As mentioned earlier, the principle against self-incrimination is protected through three procedural safeguards, namely: (1) use immunity; (2) derivative use immunity; and (3) constitutional exemption:[55]

• Use immunity serves to protect the individual from having the compelled incriminating testimony used directly against him or her in a subsequent proceeding;
• The derivative use protection insulates the individual from having the compelled incriminating testimony used to obtain other evidence, unless that evidence is discoverable through alternative means; and
• The constitutional exemption provides a form of complete immunity from testifying where proceedings are undertaken or predominately used to obtain evidence for the prosecution of the witness.[56]

[91]           A professional can be compelled to answer the syndic’s questions at the investigative stage (s. 122 of the Professional Code) or compelled to testify at the hearing stage (s. 147 of the Professional Code). The use immunity and derivative use immunity protections are applicable to a statement made to the syndic during the investigation stage or to the testimony under compulsion at the hearing.

[92]           Furthermore, the protection against self-incrimination enshrined in s. 13 of the Charter is available to the professional who is also charged with a criminal offence, like Mr. Zarow, whether or not he was compelled to testify.[57] Of course, the prior testimony may be used for impeachment purposes.[58]

(c) Restrictions to the open court principle to protect the right to a fair trial

[93]           Finally, in the context of non-criminal proceedings (including disciplinary proceedings) parallel to a criminal prosecution, I must say a few words concerning restrictions to the open court principle such as publication bans, in camera hearings and other similar restrictions. In order to overcome the strong presumption of openness, the stringent requirements of the Dagenais/Mentuck/Sherman framework or principles[59] must be met. Exceptions to the open court principle must not be granted on a routine basis.[60]

[94]           It seems to me that, in the case at bar, one cannot assess whether a prejudice was established or was prematurely adjudicated by the judge unless one has a proper understanding of the application of the open court principle to proceedings parallel to a criminal prosecution.

[95]           In cases dealing with the effects of pre-trial publicity, the “objective [of a fair trial] is readily attainable in the vast majority of criminal trials even in the face of a great deal of publicity”[61] and even without publication bans or confidentiality orders. As Cory J. noted in Westray, “[t]he solemnity of the juror’s oath, the existence of procedures such as change of venue and challenge for cause, and the careful attention which jurors pay to the instructions of a judge all help to ensure that jurors will carry out their duties impartially”.[62] Where the trial is to be held before a judge alone, an individual cannot “claim that his fair trial rights have been breached by excessive pre‑trial publicity”.[63]

[96]           It is true that the preoccupation with pre-trial publicity is of a different nature from the issue in this case – i.e., the impact of the disclosure of an accused’s defence – but both concern the fairness of the accused’s trial.

[97]           Consequently, the earlier analysis concerning the exceptional circumstances required to obtain a stay of parallel proceedings – because of the potential disclosure of the accused’s defence or self-incriminating evidence – is relevant and informs the discussion about whether publication bans and confidentiality orders pursuing the same objective (i.e., trial fairness) should be issued.

[98]           Of course, confidentiality orders will permit the parallel proceedings to carry on, but at a resulting cost to the openness of disciplinary proceedings. Yet, as “the open court principle is engaged by all judicial proceedings, whatever their nature”,[64] and in view of “the crucial role that professional orders play in protecting the public interest”[65] and the heightened need for transparency of disciplinary proceedings,[66] it is likely that the strong presumption of openness[67] will prevail in most disciplinary proceedings, unless the stringent requirements of the Dagenais/Mentuck/Sherman principles are met.

[99]           I am not suggesting that confidentiality orders of some sort should never be made in disciplinary proceedings to prevent the disclosure of an accused’s defence, nor am I suggesting that they should always be made. Applying the Dagenais/Mentuck/Sherman framework is clearly a fact-specific and contextual endeavour. I am also fully aware of the existence of divergent views on this issue in the courts below and in disciplinary councils, which views need not be canvassed in this case.[68] Suffice it to say that I know of no case suggesting that such orders should always be made.

[100]      Given the importance of the open court principle, it is crucial to understand that, in many cases, disciplinary proceedings parallel to a criminal prosecution will, in all likelihood, take place without confidentiality orders of the type issued in the present matter.

[101]      If we were to conclude that the mere disclosure of Mr. Zarow’s defence through the improper transmission of the council’s decision is sufficient to result in a stay of the criminal proceedings – even without the demonstration of a real prejudice to the right to a fair trial – it would become necessary to issue some form of confidentiality order in every case of disciplinary proceedings parallel to a criminal prosecution in order to prevent the disclosure of an accused’s defence and a consequential stay of proceedings. In my view, the issuance of automatic confidentiality orders would be contrary to the open court principle.

[102]      As mentioned earlier, the disclosure of an accused’s defence will be an inevitable by-product of proceedings parallel to a criminal prosecution where no confidentiality orders have been issued.  Nevertheless, it is essential to emphasize that even under such circumstances, an accused retains access to robust constitutional safeguards and remedies[69] to prevent an unfair trial or to protect the integrity of the judicial process, including recourse to the abuse of process doctrine.[70]

[103]      As L’Heureux-Dubé J. astutely observed in R. v. O’Connor:

[…] the Charter has now put into judges’ hands a scalpel instead of an axe — a tool that may fashion, more carefully than ever, solutions taking into account the sometimes complementary and sometimes opposing concerns of fairness to the individual, societal interests, and the integrity of the judicial system.[71]

[104]      Lest there be any doubt, I am not trying to diminish the seriousness of the violation of the confidentiality orders, which, in the absence of any explanation, may amount to contempt of court (s. 142 of the Professional Code). But the motion for a stay of proceedings was based on the impact of the transmission of the decision on Mr. Zarow’s right to a fair trial – i.e., the main category of the abuse of process test – such that it is not necessary to qualify the seriousness of the violation of the confidentiality orders.[72]

[105]      Without establishing an identifiable prejudice, an automatic stay of proceedings cannot be justified, especially where, as is the case here, the trial is to take place before a judge alone.[73]

(d) Transmission of the decision to the complainant

[106]      I now turn my attention to the principles applicable to weighing any prejudice resulting from the transmission of the council’s decision to the complainant.

[107]      In my view, the prosecution rightly argues that the Supreme Court’s decision in R. v. Buric is apposite.[74] Buric concerned the tainting of a prosecution witness who was shown evidence (including witness statements) by the police before giving a statement implicating the accused for murder.

[108]      The Supreme Court dismissed the appeal for the reasons of Labrosse J.A. of the Ontario Court of Appeal, who expressed the view that whether a witness was tainted concerned the weight but not the admissibility of the testimony, further stating that “[i]t is difficult to foresee how a trial will unfold when the witness has not yet been heard. It is not clear how the defence would have been restricted or prejudiced in the cross-examination of [the alleged tainted witness]”.[75] The latter comment is quite relevant to this appeal.

[109]      Two principles have emerged from Buric: (1) the possibility of witness tainting is a question of weight, not admissibility;[76] and (2) the admission of evidence which may be unreliable does not per se render a trial unfair.[77]

[110]      Whether the complainant was tainted by the reading of the decision is to be tested through cross-examination in order to determine whether the reliability and credibility of her testimony was impacted. No premature conclusion may be drawn before such a cross-examination.[78]

(e) Was the decision to stay the proceedings premature?

[111]      With respect to the impact of the transmission of the disciplinary decision on the complainant, the prosecution invited the judge to postpone her ruling at least until after the complainant had testified.[79]

[112]      The prosecution argued that this Court’s decision in R. v. Gorenko[80] supported its submission. In Gorenko, the Court wrote the following:

[52] Dans les circonstances de l’espèce, le juge de première instance aurait dû surseoir à statuer sur la demande car il ne pouvait pas en venir à la conclusion, avant même de commencer à entendre la preuve, qu’aucune mesure autre que l’arrêt des procédures ne pouvait réparer le préjudice causé par la conduite de l’enquêteur.

[53] Il est donc préférable que le procès ait lieu et que la question de la violation soit examinée au fur et à mesure de la présentation de la preuve.

[Reference omitted]

[113]      In footnote 28 of its decision in Gorenko, the Court referred to the following passage of La,[81] in which Sopinka J. discussed the timing of the disposition of an application for a stay of proceedings. He stated:

[27] The appropriateness of a stay of proceedings depends upon the effect of the conduct amounting to an abuse of process or other prejudice on the fairness of the trial. This is often best assessed in the context of the trial as it unfolds. Accordingly, the trial judge has a discretion as to whether to rule on the application for a stay immediately or after hearing some or all of the evidence. Unless it is clear that no other course of action will cure the prejudice that is occasioned by the conduct giving rise to the abuse, it will usually be preferable to reserve on the application. This will enable the judge to assess the degree of prejudice and as well to determine whether measures to minimize the prejudice have borne fruit. This is the procedure adopted by the Ontario Court of Appeal in the context of lost evidence cases. In R. v. B. (D.J.) (1993), 16 C.R.R. (2d) 381, the court said at p. 382:

The measurement of the extent of the prejudice in the circumstances of this case could not be done without hearing all the relevant evidence, the nature of which would make it clear whether the prejudice was real or minimal.

Similarly, in R. v. Andrew (S.) (1992), 60 O.A.C. 324, the court found at p. 325 that unless the Charter violation “is patent and clear, the preferable course for the court is to proceed with the trial and then assess the issue of the violation in the context of the evidence as it unfolded at trial”.  See also: R. v. François (L.) (1993), 65 O.A.C. 306; R. v. Kenny (1991), 92 Nfld. & P.E.I.R. 318 (Nfld. S.C.T.D.).

[114]      In my view, under these principles and in light of the preceding review of the law applicable to proceedings parallel to a criminal prosecution, the decision to stay the proceedings was premature.[82]

[115]      For these reasons, I am of the view that the Court should allow the appeal, quash the stay of proceedings and order the continuation of the proceedings.

[1]  R. c. Zarow, 2022 QCCQ 5418.

[2]  Cameron J.A. of the Saskatchewan Court of Appeal, quoted by Wilson J. in R. v. Wigglesworth, [1987] 2 S.C.R. 541, p. 549.

[3]  While we are not seized with the appropriateness of these orders, it is important to understand the principles applicable to the issuance of such orders in order to properly weigh the alleged prejudice raised by Mr. Zarow in the context of the main category of the abuse of process doctrine.

[4]  The case management judge was designated pursuant to s. 551.1 of the Criminal Code.

[5]  In Sherman Estate v. Donovan, 2021 SCC 25, [2021] 2 S.C.R. 75, para. 3, Kasirer J. provided the following description of the type of “discretionary court order limiting constitutionally‑protected openness” that can be issued: “a sealing order, a publication ban, an order excluding the public from a hearing, or a redaction order”.

[6]  R. c. Zarow, 2022 QCCQ 5418, paras. 1-10.

[7]  Id., para. 14. See R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309.

[8]  R. c. Zarow, 2022 QCCQ 5418, para. 21.

[9]  R. c. Zarow, 2022 QCCQ 5418, para. 22.

[10]  Id., paras. 29-30.

[11]  Id., paras. 31-32.

[12]  Id., paras. 39-40.

[13]  Id., para. 41.

[14]  Id., para. 48.

[15]  R. c. Zarow, 2022 QCCQ 5418, para. 47 (citing Moldaver J. in R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, para. 40).

[16]  Id., paras. 48-49.

[17]  Id., paras. 8 and 43.

[18]  Pursuant to Perka v. The Queen, [1984] 2 S.C.R. 232, p. 240, Mr. Zarow may raise any issue supporting the stay of proceedings imposed.

[19]  R. c. Zarow, 2022 QCCQ 5418, par. 40.

[20]  R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, para. 48. See also Beaumont c. R., 2022 QCCA 1686, para. 22 (citing R. c. Couche-Tard inc., 2014 QCCA 1456, and Babos).

[21]  R. v. Brunelle, 2024 SCC 3, paras. 79, 87 and 89. See also R. v. Gowdy, 2016 ONCA 989, para. 55, leave to appeal denied [2017] 1 S.C.R. x.

[22]  [1997] 2 S.C.R. 680, para. 27; R. c. Gorenko, 2005 QCCA 1002, paras. 52-53 and footnote 28; R. c. Delisle, 2023 QCCA 1096, paras. 127-133.

[23]  This Court has no original jurisdiction to vary the confidentiality orders made by the disciplinary council, but it may vary these orders if the issue on appeal requires it: see Re Personne désignée c. R., 2022 QCCA 984, paras. 142-144. For these reasons, the Court varied the orders so as to grant access to the disciplinary council’s decision to the panel and to counsel acting for the prosecution in this appeal: R. c. Zarow, 2024 QCCA 315. Without access to the decision, this Court would have been placed in an impossible situation.

[24]  I should point out the prosecution’s inconsistent position on this issue. It repudiates before us the position it took at trial and in its brief, where it stated that it was “not without reason” that the judge had not read the decision.

[25]  R. v. Stinchcombe, [1991] 3 S.C.R. 326, pp. 346-347. See also Foster Wheeler Power Co. v. Société intermunicipale de gestion et d’élimination des déchets (SIGED) inc., 2004 SCC 18, [2004] 1 S.C.R. 456, para. 47; G.G. c. R., 2021 QCCA 1835, para. 49.

[26]  2014 QCCA 1456.

[27]  The circumstances that were before this Court in Couche-Tard are summarized at para. 4 of that judgment: “The Crown repudiated a plea agreement with Alimentation Couche-Tard Inc. (Alimentation) after the latter had disclosed its intended defences to the charges against it, as provided in that agreement. Alimentation had been charged with being a central figure in a gas-pump price-fixing scheme in four cities in Quebec, contrary to section 45 of the Competition Act. The Crown subsequently withdrew the charges against Alimentation but filed identical charges against the respondent, Couche-Tard Inc., a related company, which had been granted immunity from prosecution under the plea agreement and whose defences are essentially the same as Alimentation’s. According to the trial judge, the repudiation constitutes an abuse of process infringing on the fairness of the respondent’s trial. He deemed that a stay of proceedings was the only measure that could remedy such prejudice.”

[28]  Stickney v. Trusz (1973), 16 C.C.C. (2d) 25 (Ont. H.Ct.J.), aff’d (1974), 17 C.C.C. (2d) 478 (Div. Ct.), aff’d (1974), 17 C.C.C. (2d) 478 (C.A.), leave to appeal denied [1974] S.C.R. xii.

[29]  (1973), 16 C.C.C. (2d) 25 (Ont. H.Ct.J.), p. 28. See the discussion in Ed Ratushny, “Self-Incrimination: Nailing the Coffin Shut” (1977-1978), 20 C.L.Q. 312, pp. 350-352; Robert W. Hubbard and Katie Doherty, The Law of Privilege in Canada, § 10:27 (Parallel Criminal and Non-criminal Proceedings), Canada Law Book, loose‑leaf ed., updated February 2024, Release No. 1.

[30]  (1995), 27 O.R. (3d) 1, p. 7.

[31]  (2001), 160 C.C.C. (3d) 131. See also Treat America Limited v. Leonidas, 2012 ONCA 748, para. 44.

[32]  (1998), 1 C.B.R. (4th) 110.

[33]  (1995), 27 O.R. (3d) 1.

[34]  (1998), 1 C.B.R. (4th) 110. See also The Director of Criminal Property and Forfeiture v. Gurniak et al., 2020 MBCA 96, para. 58, where Obadia is referred to.

[35]  While a stay of civil proceedings is almost always refused on the basis of Obadia, different types of confidentiality orders are regularly issued to prevent the dissemination of an accused’s defence at the early stages of civil proceedings, some of which are simply an application of Lac d’Amiante du Québec Ltée v. 2858-0702 Québec Inc., 2001 SCC 51,[2001] 2 S.C.R. 743. See, for example, Futura Manufacturier de portes et fenêtres inc. c. Dionne (E. Dionne), 2022 QCCQ 8336; Bergeron c. Tremblay, 2012 QCCA 1301 (judge alone); Jacques c. Ultramar ltée, 2011 QCCS 5272; Vadeboncoeur c. St-Amant, 2013 QCCS 5035.

[36]  [1995] 2 S.C.R. 97, pp. 178-179.

[37]  See the reference to both Stickney and Westray in Juman v. Doucette, 2008 SCC 8, [2008] 1 S.C.R. 157, para. 20, where Binnie J. wrote: “The root of the implied undertaking is the statutory compulsion to participate fully in pre-trial oral and documentary discovery. If the opposing party seeks information that is relevant and is not protected by privilege, it must be disclosed even if it tends to self-incrimination.” [Emphasis added] Of course, in the context of discovery, because of the implied undertaking rule, the self-incriminating information is not accessible to the outside world.

[38]  2017 MBCA 27.

[39]  2020 MBCA 96.

[40]  R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, para. 32.

[41]  Id., para. 34.

[42]  MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235, p. 1260; Celanese Canada Inc. c. Murray Demolition Corp., 2006 SCC 36, [2006] 2 S.C.R. 189, para. 3.

[43]  2009 ONCA 573, para. 58.

[44]  Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97, para. 165.

[45]  Thébaud c. R., 2019 QCCA 724, para. 36.

[46]  R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751, para. 21; R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198, para. 19; R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, para. 60.

[47]  Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97, para. 108; R. c. Auclair, 2013 QCCA 671, para. 83, aff’d 2014 SCC 6, [2014] 1 S.C.R. 83; R. c. Varennes, 2023 QCCA 136, para. 39; Tak v. British Columbia (Securities Commission), 2023 BCCA 76, para. 61.

[48]  [1995] 2 S.C.R. 97.

[49]  R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, para. 32.

[50]  R. v. Primeau, [1995] 2 S.C.R. 60, para. 19; R. v. Jobin, [1995] 2 S.C.R. 78, para. 36.

[51]  Caroline Murdoch and Joan Brockman, “Who’s On First? Disciplinary Proceedings by Self-Regulating Professions and other Agencies for ‘Criminal’ Behaviour” (2001), 64 Sask. Law Rev. 29, pp. 52-53.

[52]  R. v. White, [1999] 2 S.C.R. 417, para. 44.

[53]  Id., para. 45. See also R. v. Jarvis, [2002] 3 S.C.R. 757, 2002 SCC 73, para. 68; R. v. S.A.B., [2003] 2 S.C.R. 678, 2003 SCC 60, para. 57; R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696, para. 30.

[54]  R. v. White, [1999] 2 S.C.R. 417, para. 45.

[55]  Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42, [2004] 2 S.C.R. 248, para. 70.

[56]  Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42, [2004] 2 S.C.R. 248, para. 71.

[57]  R. v. Nedelcu, 2012 SCC 59, [2012] 3 S.C.R. 311. The Court in Nedelcu was unanimous on that issue: para. 1 (Moldaver J.); paras. 101-109 (LeBel J., dissenting but not on this point); R. v. H.P., 2022 ONCA 419, para. 46. See Martin Vauclair, Tristan Desjardins and Pauline Lachance, Traité général de preuve et de procédure pénales, 30th ed., Yvon Blais, 2023, p. 807, paras. 29.55-29.56; David Paciocco, Palma Paciocco and Lee Stuesser, The Law of Evidence, 8th ed., Irwin Law, 2020, p. 393.

[58]  R. v. Nedelcu, 2012 SCC 59, [2012] 3 S.C.R. 311, para. 28.

[59]  As Wagner C.J. labeled it in La Presse inc. v. Quebec, 2023 SCC 22, paras. 37, 55 and 77.

[60]  Sherman Estate v. Donovan, 2021 SCC 25, [2021] 2 S.C.R. 75, para. 3; Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97, paras. 134-135.

[61]  Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97, para. 133.

[62]  Id., para. 134.

[63]  Id., para. 139.

[64]  Sherman Estate v. Donovan, 2021 SCC 25, [2021] 2 S.C.R. 75, para. 44.

[65]  Pharmascience Inc. v. Binet, 2006 SCC 48, [2006] 2 S.C.R. 513, para. 36.

[66]  Southam Inc. c. Gauthier, [1996] R.J.Q. 603 (C.A.), p. 607, quoted in Guay c. Gesca ltée, 2013 QCCA 343, para. 96.

[67]  Sherman Estate v. Donovan, 2021 SCC 25, [2021] 2 S.C.R. 75, paras. 1-3.

[68]  See the numerous disciplinary council decisions rendered after the Superior Court’s decision in Racine c. Conseil de discipline de la Chambre des notaires du Québec, 2016 QCCS 5064. But see this Court’s decision in Média QMI inc. c. Desormeau, 2024 QCCA 440. I must also underline the following observations made by Kasirer J. in Canadian Broadcasting Corp. v. Manitoba, 2021 SCC 33, para. 51: “To be clear, limits on court openness, such as a publication ban, can be made without prior notice to the media. Given the importance of the open court principle and the role of the media in informing the public about the activities of courts, it may generally be appropriate to give prior notice to the media, in addition to those persons who would be directly affected by the publication ban or sealing order, when seeking a limit on court openness” […] “But whether and when this notice should be given is ultimately a matter within the discretion of the relevant court” [References omitted].

[69]  British Columbia Securities Commission v. Branch, [1995] 2 S.C.R. 3; R. v. Jarvis, 2002 SCC 73, [2002] 3 S.C.R. 757; Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42, [2004] 2 S.C.R. 248; R. v. Nedelcu, 2012 SCC 59, [2012] 3 S.C.R. 311.

[70]  R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309.

[71]  [1995] 4 S.C.R. 411, para. 69; R. v. Brunelle, 2024 SCC 3, para. 118; Péloquin c. R., 2023 QCCA 1233, para. 92.

[72]  I must point out that Mr. Zarow argued at trial that pursuant to s. 123.2 of the Professional Code, the complainant did not have the right to receive a copy of the decision regarding Mr. Zarow’s culpability. Section 123.2 establishes the duty of the syndic to send to the person who lodged the complaint “the decision of the disciplinary council dismissing the complaint or imposing one or more of the penalties prescribed in the first paragraph of section 156”.  It is unnecessary to determine whether the syndic was prevented by s. 123.2 from sending the decision on culpability to the complainant, because, in this case, the confidentiality orders prohibited the syndic from doing so.

[73]  Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97, paras. 1, 39, 73, 138-139, 152 and 162.

[74]  [1997] 1 S.C.R. 535.

[75]  R. v. Buric (1996), 106 C.C.C. (3d) 97 (Ont. C.A.), p. 112, aff’d [1997] 1 S.C.R. 535.

[76]  R. v. F. (C.C.), [1997] 3 S.C.R. 1183, para. 53.

[77]  R. v. Hodgson, [1998] 2 S.C.R. 449, para. 21, citing Buric; O’Reilly c. R., 2017 QCCA 1283, para. 203, footnote 122.

[78]  In R. v. J.J., 2022 SCC 28, para. 187, albeit in a very different context, Wagner, C.J. noted that “‘[w]itness tainting’ is not a concern that precludes effective cross‑examination with respect to Crown disclosure in criminal trials or civil proceedings”. See also R. v. Buric (1996), 106 C.C.C. (3d) 97 (Ont. C.A.), p. 112, aff’d [1997] 1 S.C.R. 535.

[79]  R. c. Zarow, 2022 QCCQ 5418, paras. 8 and 43.

[80]  2005 QCCA 1002. The prosecutor specifically read para. 52 of Gorenko to the case management judge.

[81]  [1997] 2 S.C.R. 680.

[82]  See also R. c. Delisle, 2023 QCCA 1096, paras. 131-133.