SCC hears case about production of on-board cockpit voice recorder (CVR) following TSB investigation
A class action lawsuit has been filed on behalf of the passengers against
The law also provides that “on-board recording”, such as the recording of voice communications in the cockpit via a CVR, is preferred. Although the CVR must be given to a TSB investigator who requests it as part of an investigation, this recording must not be shared with anyone else. Subsection 28(6) of the Act provides the following exception to this statutory claim of privilege:
28(6) Notwithstanding anything in this section, where in a proceeding before a court or a coroner an application is made for the production and discovery of an on-board recording, the court or the coroner shall
- cause notice of the application to be given to the Board, if the Board is not a party to the proceeding;
- in camera, review the on-board recording and give the Commission a reasonable opportunity to comment thereon; and
- if the court or the coroner finds, in the circumstances of the case, that the public interest in the proper administration of justice outweighs the privilege attaching to the on-board recording under this section, order the production and discovery of the on-board recording the recording, subject to such restrictions or conditions as the court or coroner deems appropriate, and may require any person to give evidence in connection with the on-board recording.
Relying on art. 28(6) of the Act, Airbus, the
The original motion was heard by
On appeal, the TSB asserted that the motion judge erred:
ACPA supported the appeal, arguing that CVR disclosure would compromise pilot privacy and public safety by discouraging candor in flight officer communications.
What are in camera representations?
The TSB argued that the inclusion of the words “in camera” in Article 28(6)(b) authorized him to do ex parte representations in court prior to any decision to disclose the contents of the CVR. Indeed, the TSB argued that the motion judge should have allowed it to make submissions not only in the absence of the public (in camera) but also in the absence of any other party involved in the legal proceedings (ex parte).
In interpreting the meaning of the Act, the
“Clearly, subsection 28(6) authorizes the Court – and not the parties – to listen to the cockpit recorder in camera. The Board – which is not a party in the ordinary sense of the term – then has the opportunity to make representations regarding the registration – which non-parties normally cannot.”
The Court of Appeal did not clearly decide this issue, but held that even if the motions judge erred in denying the TSB ex parte submissions, the TSB still had to establish that the error was material in the sense that it could affect the outcome of the application. The Court of Appeal concluded that the TSB had failed to do so. This decision appears to support an interpretation of paragraph 28(6)(b) that the words “in camera“apply only to the court’s review of the CVR and not to any observations the TSB may be permitted to make thereon.
Did the judge err in determining that the public interest favored CVR’s parole?
The TSB argued that the motion judge erred in fact in his analysis of the evidence and erred in law in applying the wrong legal test to weigh the relevant interests. The motion judge followed and applied the legal test as set out by
The motions judge concluded that:
The Court of Appeal found no error in the trial judge’s analysis of the facts, which deserved deference. They noted that he weighed the public interest in the administration of justice against privacy/security concerns and legal privilege and ordered the restricted broadcast and use of the CVR on certain conditions. The Court of Appeal dismissed the appeal.
It should be noted that this decision was appealed to the
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