Ipsofactoj.com: International Cases  Part 6 Case 2 [SCC]
SUPREME COURT OF CANADA
- vs -
11 JULY 2002
This case raises the issue of when, if ever, Cabinet confidences must be disclosed in litigation between the government and private citizens.
On June 6, 1990, the Treasury Board of Canada set the pay of Department of Justice lawyers working in the Toronto Regional Office at a higher rate than that of lawyers working elsewhere. Vancouver staff lawyers brought an action in the Supreme Court of British Columbia, contending that by failing to pay them the same salaries as Toronto lawyers the government breached their contracts of employment and the fiduciary duty toward them.
The action proceeded, and the parties exchanged lists of relevant documents in December 1996, as required by the B.C. Supreme Court Rules. A supplemental list of documents was delivered by the government in June 1997. The government listed a number of documents as producible.
The government then brought a motion to have the action transferred from the Supreme Court of British Columbia to the Federal Court. In support of its application, it filed an affidavit by Joan McCoy, an officer of the Treasury Board Secretariat. The affidavit stated that the rationale for the Order-in-Council authorizing the pay raise for Toronto lawyers was that lawyers in Toronto generally commanded higher salaries than lawyers in other parts of the country. The affidavit also disclosed the date of the Treasury Board's decision.
The government's motion to transfer the action was denied and the action continued in the Supreme Court of British Columbia. The government, nearly two years after it delivered the first list of documents, changed its position on disclosure of documents. It delivered a certificate of the Clerk of the Privy Council pursuant to s. 39(1) of the Canada Evidence Act, R.S.C. 1985, c. C-5, objecting to the disclosure of 51 documents and any examination thereon, on the ground that they contain "information constituting confidences of the Queen's Privy Council for Canada". The certificate claimed protection for
12 government documents previously listed as producible (some of which had already been disclosed),
5 documents in the control or possession of the plaintiffs, and
34 government documents and information previously listed as not producible.
The plaintiffs (respondents) brought an application to compel production of the documents for which the government claimed protection. The chambers judge, Edwards J., ruled against them, holding that s. 39 of the Canada Evidence Act was constitutional and clear. If the Clerk of the Privy Council filed a certificate, that was the end of the matter, and the courts had no power to set the certificate aside. A majority of the Court of Appeal reversed this decision and ordered production of the documents on the ground that the government had waived its right to claim confidentiality by listing some of the documents as producible and by disclosing selective information in the McCoy affidavit. The government appeals this decision to this Court.
Canada Evidence Act, R.S.C. 1985, c. C-5
Where a minister of the Crown or the Clerk of the Privy Council objects to the disclosure of information before a court, person or body with jurisdiction to compel the production of information by certifying in writing that the information constitutes a confidence of the Queen's Privy Council for Canada, disclosure of the information shall be refused without examination or hearing of the information by the court, person or body.
For the purpose of subsection (1), "a confidence of the Queen's Privy Council for Canada" includes, without restricting the generality thereof, information contained in
For the purposes of subsection (2), "Council" means the Queen's Privy Council for Canada, committees of the Queen's Privy Council for Canada, Cabinet and committees of Cabinet.
Subsection (1) does not apply in respect of
A. British Columbia Supreme Court (1999), 176 D.L.R. (4th) 417
The chambers judge dismissed the plaintiff's application for production and upheld the government's claim to confidentiality in its entirety. He held that certification by the Clerk of the Privy Council or a minister of the Crown under s. 39 creates absolute protection, which reflects the importance of protecting the confidentiality of the Cabinet process. Since the remuneration of employees was exclusively within competence of the federal government, the Clerk's decision to certify the documents and information as confidential could not be challenged. Neither the listing of documents as producible nor the disclosure of information in the McCoy affidavit constituted waiver. Edwards J. found that barring very exceptional circumstances, prior disclosure does not waive s. 39. Finally, Edwards J. rejected the argument that confidentiality unconstitutionally trenched on the core jurisdiction of the Superior courts protected by s. 96 of the Constitution Act, 1867, given the long recognition of cabinet privilege as a legitimate exercise of Parliament's power.
B. British Columbia Court of Appeal (2000), 188 D.L.R. (4th) 678, 2000 BCCA 348
The majority of the Court of Appeal held that Edwards J. erred in rejecting the claim that the government had waived protection to the documents and information. The Crown, as a public representative, must be able to waive privilege; otherwise, any litigant opposing the Crown would be in the untenable position of being unable to rely on the government's production of documents, regardless of how essential the documents were to their case or how late the Crown's application for immunity. While there might be a need for "extreme curtailment" of a litigant's rights to full discovery for documents concerned with sensitive matters like state defence, internal security or diplomatic relations, the government must be permitted to waive protection in appropriate cases.
Applying this principle, the majority held that the government waived immunity for the 17 documents previously identified as producible. Protection was also waived for the information in the McCoy affidavit which outlined the government's rationale for the salary differential at the heart of the litigation. Any claim for privilege thereafter would be selective, requiring that claims for confidentiality on all related information be treated as waived. With respect to the remaining 34 documents, the majority held that s. 39 confers class immunity rather than selective immunity; it followed that waiver operates on a class basis. Thus, waiver of immunity for 17 of the documents covered by the s. 39 certificate waived the immunity for all of the relevant documents within the class. In view of this conclusion, it was not necessary to consider whether s. 39 was constitutional.
Southin J.A. dissented. In her view, it is "not appropriate for the judiciary to intermeddle in the business of the Cabinet and its committees and it is not at all clear to me, .... that the judiciary must regain its control over this whole field of the law, a proposition which to me has a distasteful ring of judicial arrogance" (para. 52). This said, s. 39 is limited to papers that are actually put before the Cabinet or a Cabinet committee and the Clerk must exercise her powers properly. She must properly describe the documents, bringing them within the ambit of the section, and if it can be shown, either from internal or external evidence, that the Clerk has exceeded the power conferred upon her, the court can require disclosure of all documents not within the section.
Southin J.A. held that only an act of the Clerk or of a minister of the Crown can effect waiver. Otherwise, junior functionaries having no conception of the importance of Cabinet confidentiality would be able to waive it, to the detriment of the national interest.
Newbury J.A concurred with MacKenzie J.A. with respect to the waiver of privilege in this case. However, she went on to state that had waiver not occurred, she would have agreed with Southin J.A.'s findings concerning the requirements of particularity on the part of the Clerk in claiming the privilege.
What is the nature of Cabinet confidentiality and the processes by which it may be claimed and relinquished?
Is s. 39 of the Canada Evidence Act constitutional?
A. The Principles
Cabinet confidentiality is essential to good government. The right to pursue justice in the courts is also of primary importance in our society, as is the rule of law, accountability of the executive, and the principle that official actions must flow from statutory authority clearly granted and properly exercised. Yet sometimes these fundamental principles conflict. How are such conflicts to be resolved? That is the question posed by this appeal.
The answer to the question lies in our understanding of Cabinet confidentiality. What is its purpose? What does it apply to? What is the process for claiming it? Once claimed, can it be relinquished or lost, and if so how? These questions find their answers in an understanding of Cabinet confidentiality and the ambit and effect of s. 39 of the Canada Evidence Act that protects it.
(1) The Function of Section 39 of the Canada Evidence Act
Sections 37, 38 and 39 of the Canada Evidence Act deal with objections to the disclosure of protected information held by the federal government. Section 37 relates to all claims for Crown privilege, except Cabinet confidences, or confidences of the Queen's Privy Council; s. 38 pertains to objections related to international relations or national defence; and s. 39 deals with Cabinet confidences. Under ss. 37 and 38, a judge balances the competing public interests in protection and disclosure of information. Under s. 39, by contrast, the Clerk or minister balances the competing interests. If the Clerk or minister validly certifies information as confidential, a judge or tribunal must refuse any application for disclosure, without examining the information.
The British democratic tradition which informs the Canadian tradition has long affirmed the confidentiality of what is said in the Cabinet room, and documents and papers prepared for Cabinet discussions. The reasons are obvious. Those charged with the heavy responsibility of making government decisions must be free to discuss all aspects of the problems that come before them and to express all manner of views, without fear that what they read, say or act on will later be subject to public scrutiny: see Singh v Canada (Attorney General),  3 F.C. 185 (C.A.), at paras. 21-22. If Cabinet members' statements were subject to disclosure, Cabinet members might censor their words, consciously or unconsciously. They might shy away from stating unpopular positions, or from making comments that might be considered politically incorrect. The rationale for recognizing and protecting Cabinet confidences is well summarized by the views of Lord Salisbury in the Report of the Committee of Privy Counsillors on Ministerial Memoirs, January 1976, at p. 13:
A Cabinet discussion was not the occasion for the deliverance of considered judgments but an opportunity for the pursuit of practical conclusions. It could only be made completely effective for this purpose if the flow of suggestions which accompanied it attained the freedom and fullness which belong to private conversations - members must feel themselves untrammelled by any consideration of consistency with the past or self-justification in the future ... The first rule of Cabinet conduct, he used to declare, was that no member should ever "Hansardize", another - ever compare his present contribution to the common fund of counsel with a previously expressed opinion...
The process of democratic governance works best when Cabinet members charged with government policy and decision-making are free to express themselves around the Cabinet table unreservedly. In addition to ensuring candour in Cabinet discussions, this Court in Carey v Ontario,  2 S.C.R. 637, at p. 659, recognized another important reason for protecting cabinet documents, namely to avoid "creat[ing] or fan[ning] ill-informed or captious public or political criticism". Thus, ministers undertake by oath as Privy Councillors to maintain the secrecy of Cabinet deliberations and the House of Commons and the courts respect the confidentiality of Cabinet decision-making.
At one time, the common law viewed Cabinet confidentiality as absolute. However, over time the common law has come to recognize that the public interest in Cabinet confidences must be balanced against the public interest in disclosure, to which it might sometimes be required to yield: see Carey, supra. Courts began to weigh the need to protect confidentiality in government against the public interest in disclosure, for example, preserving the integrity of the judicial system. It follows that there must be some way of determining that the information for which confidentiality is claimed truly relates to Cabinet deliberations and that it is properly withheld. At common law, the courts did this, applying a test that balanced the public interest in maintaining confidentiality against the public interest in disclosure: see Carey, supra.
In addition, many jurisdictions have enacted laws that modify the common law and provide a statutory process for determining what documents are protected and how claims to confidentiality may be challenged: see, for example, the Ombudsman Act, R.S.B.C. 1996, c. 340. The exercise of this statutory power is subject to the well-established rule that official actions must flow from statutory authority clearly granted and properly exercised: Roncarelli v Duplessis,  S.C.R. 121. The courts have the power and the responsibility, when called upon, to determine whether the certifying official has exercised his or her statutory power in accordance with the law.
Section 39 of the Canada Evidence Act is Canada's response to the need to provide a mechanism for the responsible exercise of the power to claim Cabinet confidentiality in the context of judicial and quasi-judicial proceedings. It sets up a process for bringing information within the protection of the Act. Certification by the Clerk of the Privy Council or by a minister of the Crown, is the trigger by which information becomes protected. The Clerk must certify that the "information constitutes a confidence of the Queen's Privy Council for Canada". For more particularity, s. 39(2) sets out categories of information that falls within its scope.
Section 39(1) permits the Clerk to certify information as confidential. It does not restrain voluntary disclosure of confidential information. This is made clear from the French enactment of s. 39(1) which states that s. 39 protection arises only "dans les cas où" (in the cases where) the Clerk or minister opposes disclosure of information. Therefore, the Clerk must answer two questions before certifying information:
first, is it a Cabinet confidence within the meaning of ss. 39(1) and (2); and
second, is it information which the government should protect taking into account the competing interests in disclosure and retaining confidentiality?
If, and only if, the Clerk or minister answers these two questions positively and certifies the information, do the protections of s. 39(1) come into play. More particularly, the provision that "disclosure of the information shall be refused without examination or hearing of the information by the court, person or body" is only triggered when there is a valid certification.
If the Clerk or minister chooses to certify a confidence, it gains the protection of s. 39. Once certified, information gains greater protection than at common law. If s. 39 is engaged, the "court, person or body with jurisdiction" hearing the matter must refuse disclosure; "disclosure of the information shall be refused". Moreover, this must be done "without examination or hearing of the information by the court, person or body". This absolute language goes beyond the common law approach of balancing the public interest in protecting confidentiality and disclosure on judicial review. Once information has been validly certified, the common law no longer applies to that information.
This raises the issue of what constitutes valid certification. Two requirements are plain on the face of the legislation.
First, it must be done by the Clerk of the Privy Council or a minister of the Crown.
Second, the information must fall within the categories described in s. 39(2).
A third requirement arises from the general principle applicable to all government acts, namely, that the power exercised must flow from the statute and must be issued for the bona fide purpose of protecting Cabinet confidences in the broader public interest. The function of the Clerk under the Act is to protect Cabinet confidences, and this alone. It is not to thwart public inquiry nor is it to gain tactical advantage in litigation. If it can be shown from the evidence or the circumstances that the power of certification was exercised for purposes outside those contemplated by s. 39, the certification may be set aside as an unauthorized exercise of executive power: see Roncarelli, supra.
A fourth requirement for valid certification flows from the fact that s. 39 applies to disclosure of the documents. Where a document has already been disclosed, s. 39 no longer applies. There is no longer a need to seek disclosure since disclosure has already occurred. Where s. 39 does not apply, there may be other bases upon which the government may seek protection against further disclosure at common law: Duncan v Cammell, Laird & Co.,  A.C. 624 (H.L.), at p. 630; Leeds v Alberta (Minister of the Environment) (1990), 69 D.L.R. (4th) 681 (Alta. Q.B.); Sankey v Whitlam (1978), 142 C.L.R. 1 (Austl. H.C.), at p. 45. However, that issue does not arise on this appeal. Similarly, the issue of inadvertent disclosure does not arise here because the Crown deliberately disclosed certain documents during the course of litigation.
On the basis of these principles, I conclude that certification is generally valid if:
it is done by the Clerk or minister;
it relates to information within s. 39(2);
it is done in a bona fide exercise of delegated power;
it is done to prevent disclosure of hitherto confidential information.
It may be useful to comment on the formal aspects of certification. As noted, the Clerk must determine two things:
that the information is a Cabinet confidence within s. 39; and
that it is desirable that confidentiality be retained taking into account the competing interests in disclosure and retaining confidentiality.
What formal certification requirements flow from this? The second, discretionary element may be taken as satisfied by the act of certification. However, the first element of the Clerk's decision requires that her certificate bring the information within ambit of the Act. This means that the Clerk or minister must provide a description of the information sufficient to establish on its face that the information is a Cabinet confidence and that it falls within the categories of s. 39(2) or an analogous category; the possibility of analogous categories flows from the general language of the introductory portion of s. 39(2). This follows from the principle that the Clerk or minister must exercise her statutory power properly in accordance with the statute. The kind of description required for claims of solicitor-client privilege under the civil rules of court will generally suffice. The date, title, author and recipient of the document containing the information should normally be disclosed. If confidentiality concerns prevent disclosure of any of these preliminary indicia of identification, then the onus falls on the government to establish this, should a challenge ensue. On the other hand, if the documents containing the information are properly identified, a person seeking production and the court must accept the Clerk's determination. The only argument that can be made is that, on the description, they do not fall within s. 39, or that the Clerk has otherwise exceeded the powers conferred upon her.
As to the timing of certification, the only limits are those found in s. 39(4). Subject to these outer limits, it seems that information that falls within s. 39(2) may be certified long after the date the confidence existed or arose in Cabinet. At the same time, as discussed, if there has been disclosure, s. 39 no longer applies, since its only purpose is to prevent disclosure.
It may be that the Clerk or minister can withdraw a certification of Cabinet confidence under s. 39 of the Canada Evidence Act, on the theory that the power to certify must also include a power to decertify, as suggested by Southin J.A.; and that where a certification is made in error, for example, the Clerk or minister should be able to correct the matter. However, that issue does not arise here.
On the facts of this case, the concept of waiver in any ordinary sense of the term finds no place. As discussed, the Clerk or minister is not compelled to certify Cabinet confidences and invoke the protection of s. 39(1). However, if the Clerk or minister chooses to do so, the protection of s. 39 automatically follows. That protection continues indefinitely, unless:
the certificate is successfully challenged on the ground that it related to information that does not fall under s. 39;
the power of certification of the Clerk or minister has otherwise been improperly exercised;
s. 39(4) is engaged; or
the Clerk or minister chooses to decertify the information.
The clear language of s. 39(1) permits no other conclusion.
This is consistent with the fact that waiver does not apply at common law. A claim for confidentiality at common law cannot be contested on the ground that the government has waived its right to claim confidentiality. As Bingham L.J. observed in Makanjuola v Commissioner of Police of the Metropolis,  3 All E.R. 617 (C.A.), at p. 623, "[p]ublic interest immunity is not a trump card vouchsafed to certain privileged players to play when and as they wish". Consequently, "public interest immunity cannot in any ordinary sense be waived" (p. 623). Issues of production pursuant to s. 39 of the Canada Evidence Act fall to be resolved by the Clerk or minister responsible for balancing the public interests. If a certificate is not properly filed, and documents are released, the Crown is precluded from claiming s. 39 protection. However, by releasing some documents, the Crown has not waived its right to invoke s. 39 over other documents.
It is argued that unless the broad power of waiver envisioned by the majority of the Court of Appeal is recognized, litigants opposing the Crown will be placed in the untenable position of being unable to rely on the Crown's production of documents, no matter how essential such documents are to their case or how late the Crown makes its claim to immunity. This concern is alleviated by the fact that s. 39(1) cannot be applied retroactively to documents that have already been produced in litigation; it applies only to compel disclosure.
The conclusion that waiver does not apply here makes it unnecessary to consider the issue of class waiver - whether disclosure of one document removes protection from all documents in the same class. However, the related issue of class disclosure of information must be addressed.
Section 39 protects "information" from disclosure. It may be that some information on a particular matter has been disclosed, while other information on the matter has not been disclosed. The language of s. 39(1) does not permit one to say that disclosure of some information removes s. 39 protection from other, non-disclosed information. If the related information has been disclosed in other documents, then s. 39 does not apply and the documents containing the information must be produced. If the related information is contained in documents that have been properly certified under s. 39, the government is under no obligation to disclose the related information.
This raises the concern that selective disclosure of documents or information may be used unfairly as a litigation tactic. The fear is that the Crown could choose to disclose only those documents which are favourable to its position and certify those documents which are detrimental. Selective disclosure designed to prevent at getting at the truth would not be a proper exercise of the Clerk's or minister's s. 39 powers: Roncarelli, supra. Moreover, the ordinary rules of litigation offer protection from abuse.
First, government witnesses may be cross-examined on the information produced.
Second, the refusal to disclose information may permit a court to draw an adverse inference.
For example, in RJR-MacDonald Inc. v Canada (Attorney General),  3 S.C.R. 199, the Attorney General's refusal to disclose information relating to an advertising ban on tobacco, led to the inference that the results of the studies must undercut the government's claim that a less invasive ban would not have produced an equally salutary result (para. 166, per McLachlin J.)
(3) Judicial Review
Judicial review under s. 39 arises when "a court, person or body with jurisdiction to compel the production of information" is presented with an application to order disclosure of information which the Clerk or a minister has certified as a Cabinet confidence under s. 39(1). Section 39 is directed to whether a document is protected from disclosure.
Section 39(1) leaves little scope for judicial review of a certification of Cabinet confidentiality. It states flatly that "disclosure of the information shall be refused" (emphasis added). Furthermore, it must be refused "without examination or hearings of the information by the court, person or body".
As discussed, even language this draconian cannot oust the principle that official actions must flow from statutory authority clearly granted and properly exercised: Roncarelli, supra. It follows from this principle that the certification of the Clerk or minister under s. 39(1) may be challenged where the information for which immunity is claimed does not on its face fall within s. 39(1), or where it can be shown that the Clerk or minister has improperly exercised the discretion conferred by s. 39(1). "[T]he Court may entertain a proceeding for judicial review of the issuance of a certificate although it may not review the factual correctness of the certificate if it is otherwise in proper form": Singh, supra, at para. 43. The appropriate way to raise an argument that the Clerk has exercised her decision improperly is "by way of judicial review of the Clerk's certificate" (para. 50). The party challenging the decision may present evidence of "improper motives in the issue of the certificate" (para. 50), or otherwise present evidence to support the claim of improper issuance.
The court, person or body reviewing the issuance of a s. 39 certificate works under the difficulty of not being able to examine the challenged information. A challenge on the basis that the information is not a Cabinet confidence within s. 39 thus will be generally confined to reviewing the sufficiency of the list and evidence of disclosure. A challenge based on wrongful exercise of power is similarly confined to information on the face of the certificate and such external evidence as the challenger may be able to provide. Doubtless these limitations may have the practical effect of making it difficult to set aside a s. 39 certification.
However, it does not follow from the fact that s. 39 makes it difficult to attack a certification that the procedure is unlawful. As pointed out in Singh, supra, at para. 50, the restrictions in s. 39(1) amount to a privative clause - an unusual privative clause perhaps, but one nevertheless open to Parliament to prescribe. Courts are not unfamiliar with privative clauses that preclude them from making certain findings of fact. Provided they are within Parliament's constitutional power, they will apply. This does not, however, prevent the tribunal from drawing inferences as to the motives of the Clerk or minister from all the surrounding evidence in determining whether the statutory power to certify has been properly exercised: see Roncarelli, supra, where the majority of the Court drew the inference of illegitimate exercise of power from circumstantial evidence.
One issue remains: what tribunals are competent to decide whether a s. 39 certificate's claim to protection should be set aside on grounds that the information, as described, does not fall within s. 39 or that the certification power has been improperly exercised? The wording of s. 39(1) refers to "information before a court, person or body with jurisdiction to compel the production of information" and directs the relevant tribunal to refuse disclosure. It would seem to follow that the same bodies are competent to make orders for disclosure for improperly claimed s. 39 protection. This view is reinforced by the fact that s. 39(1) is essentially an evidentiary provision; questions of the admissibility of evidence normally fall to be decided by the tribunal seized of the matter in which the admissibility issue arises.
The Federal Court in Singh, supra, at para. 44, however, suggested that only judicial bodies, like the Federal Court, could review a s. 39 certificate: the R.C.M.P. Public Complaints Commission could not do so because it "is essentially an agency of the Executive and draws such powers as it has solely from an Act of the same Parliament that enacted the Canada Evidence Act". It is not apparent why this should be so, however. It seems open to Parliament to confer on a court, person or body with jurisdiction the power to determine whether acts of other public officials are valid. While the issue need not be decided in this case, I see no reason why all bodies expressly mentioned in s. 39 should not have the power to inquire into the validity of s. 39 claims for protection. The same would seem to apply for reviews at common law, given that the matter is essentially one of admissibility of evidence in a proceeding. The common law does not restrict review of claims for public immunity to superior courts.
Against this may be put the concern that to permit a proliferation of tribunals to set aside s. 39 certificates risks undue disclosure of important Cabinet confidences. However, s. 39 review is limited by the condition that the tribunal cannot inspect the documents, undermining the concern of improvident disclosure. Moreover, the government may appeal the tribunal's decision. Ultimately, I am not persuaded that permitting tribunals other than superior courts to determine s. 39 issues will illegitimately undermine s. 39 claims to protection.
B. Application of the Principles
(1) The Documents
The government issued a s. 39 certificate for 51 documents. Twelve of these had been identified in its list of documents under "Part I: Documents to which there is no objection to production". Of these 12, a number appear to have been not only listed, but actually disclosed to the plaintiffs. The certificate also claimed confidentiality for five documents which were in the plaintiffs' possession or control and which the plaintiffs had listed as producible.
On the record before us, s. 39 certification applies to the 34 documents listed as not producible.
As discussed, s. 39 of the Canada Evidence Act does not apply to the government documents already disclosed. Nor does s. 39 apply to the five certified documents that were in the plaintiffs' possession or control. The documents were disclosed by the government in the context of litigation. The disclosure provisions of s. 39 therefore do not apply and these documents should be produced.
(2) Information in the McCoy Affidavit
The government claims protection from disclosure for the information contained in the affidavit of Joan McCoy, which was filed in support of the government's unsuccessful motion to transfer the plaintiffs' case from the Supreme Court of British Columbia to the Federal Court.
Of particular importance is Ms. McCoy's statement in para. 21 that: "The rationale for the Treasury Board's decision to increase rates for legal officers in the Toronto Regional Office was the rise in private sector salaries to levels well above those paid in the public sector during a period of rapid economic growth in the late 1980s". According to the McCoy affidavit, "[t]he escalation of external pay rates, matched to a large degree by increases for provincial lawyers as well, had impaired the ability of the Department of Justice to attract candidates for positions in the Law group in the Toronto Regional Office. It had also led to an increase in resignations from the federal Public Service as experienced legal officers, attracted by higher salaries, left for employment in the provincial government and the private sector in the Toronto area. The viability of the regional operation was imperilled by these losses and immediate action was required to stem the flow" (para. 21 of McCoy affidavit).
The plaintiffs take issue with this rationale and seek to cross-examine Ms. McCoy on her statement. The government refuses to permit the statement to be used in evidence and denies the right to cross-examine on the information contained in it.
When it filed the McCoy affidavit, the government chose to disclose the reason for the decision to pay the Toronto Law group more than other Law groups. The government disclosed that information to support the motion that the B.C. Supreme Court was not the appropriate forum for the case. Therefore, s. 39 cannot be invoked. The affidavit must be disclosed and Ms. McCoy may be cross-examined on its contents.
As to related information, if it has been voluntarily disclosed in other documents, then s. 39 does not apply and the documents must be produced. By contrast, the government is under no obligation to disclose related information contained in documents that have been properly certified under s. 39, but runs the risk that refusal may permit the court to draw an adverse inference.
C. The Constitutionality of Section 39
Because s. 39 applies to the undisclosed documents, it is necessary to consider the constitutional questions in this case. The respondents argue that s. 39 of the Canada Evidence Act is of no force or effect by reason of one or both of the preamble to the Constitution Act, 1867 and s. 96 of the Constitution Act, 1867.
(1) The Preamble to the Constitution Act, 1867
The respondents in this case challenge the constitutionality of s. 39 and argue that the provision is ultra vires Parliament because of the unwritten principles of the Canadian Constitution: the rule of law, the independence of the judiciary, and the separation of powers. Although the unwritten constitutional principles are capable of limiting government actions, I find that they do not do so in this case.
The unwritten principles must be balanced against the principle of Parliamentary sovereignty. In Commission des droits de la personne v Attorney General of Canada,  1 S.C.R. 215, this Court upheld as constitutional s. 41(2) of the Federal Court Act, the predecessor to s. 39, which permitted the government to claim absolute privilege over a broader class of confidences.
Recently, the Federal Court of Appeal considered the constitutional validity of s. 39 of the Canada Evidence Act in Singh, supra. On the basis of a thorough and compelling review of the principle of parliamentary sovereignty in the context of unwritten constitutional principles, Strayer J.A. held that federal Crown privilege is part of valid federal law over which Parliament had the power to legislate. Strayer J.A. concluded at para. 36:
.... the rule of law cannot be taken to invalidate a statute which has the effect of allowing representatives of the Crown to identify certain documents as beyond disclosure: that is, the rule of law does not preclude a special law with a special result dealing with a special class of documents which, for long standing reasons based on constitutional principles such as responsible government, have been treated differently from private documents in a commercial law suit.
I share the view of the Federal Court of Appeal that s. 39 does not offend the rule of law or the doctrines of separation of powers and the independence of the judiciary. It is well within the power of the legislature to enact laws, even laws which some would consider draconian, as long as it does not fundamentally alter or interfere with the relationship between the courts and the other branches of government.
(2) Section 96 of the Constitution Act, 1867
A second constitutional question must be considered: whether Parliament's decision to limit superior courts from compelling disclosure of Cabinet confidences impermissibly invade the core jurisdiction of the superior courts?
There is no clear test for defining what is considered to be the "core jurisdiction" of a s. 96 court. In Reference re Amendments to the Residential Tenancies Act (N.S.),  1 S.C.R. 186, Lamer C.J. stated at para. 56:
Section 96's "core" jurisdiction is a very narrow one which includes only critically important jurisdictions which are essential to the existence of a superior court of inherent jurisdiction and to the reservation of its foundational role within our legal system.
Citing MacMillan Bloedel Ltd. v Simpson,  4 S.C.R. 725, the respondents argue that s. 39 impermissibly infringes on the core jurisdiction of a superior court because it interferes with courts' ability to control their own process.
First, because the section operates to prevent a superior court from remedying an abuse of process, and
second, because it denies evidence centrally relevant to the core factual questions in the litigation.
The respondents contend that s. 39 deprives the judiciary of its role of review, a power which a superior court possesses under the common law of public interest.
As previously stated, there is a long common law tradition of protecting Cabinet confidences. In Canada, superior courts operated since pre-Confederation without the power to compel Cabinet confidences. Indeed, at the time of Confederation, no court had any jurisdiction regarding actions against the Sovereign: see R. v Eldorado Nuclear Ltd.,  2 S.C.R. 551. Further, s. 39 has not substantially altered the role of the judiciary from their function under the common law regime. The provision does not entirely exclude judicial review of the determination by the Clerk that the information is a Cabinet confidence. A court may review the certificate to determine whether it is a confidence within the meaning provided in s. 39(2) or analogous categories, or to determine if the certificate was issued in bad faith. Section 39 does not, in and of itself, impede a court's power to remedy abuses of process.
I therefore conclude that there is no basis upon which to find that s. 39 of the Canada Evidence Act is unconstitutional.
I would allow the appeal in part, with costs to the respondents.
On the record before us, the documents certified but disclosed, including the McCoy affidavit, are no longer protected and may be used in the litigation. The plaintiffs may cross-examine on the McCoy affidavit. The remaining documents are protected by s. 39 of the Canada Evidence Act. These conclusions are made without prejudice to future applications in this case.
While I agree substantially with the reasons of the Chief Justice and the result she reaches, I cannot agree with her view as reflected in paras. 17, 22 and 28 of her reasons that "competing interests" in disclosure must be taken into account.
In my view, the unequivocal language of the statute does not mandate consideration of the public interest in disclosure; I believe the Clerk or the minister must only answer two questions before certifying, namely, whether
the document is a Cabinet confidence; and
it is information that the government wishes to protect.
Singh v Canada (Attorney General),  3 F.C. 185; Carey v Ontario,  2 S.C.R. 637; Roncarelli v Duplessis,  S.C.R. 121; Duncan v Cammell, Laird & Co.,  A.C. 624; Leeds v Alberta (Minister of the Environment) (1990), 69 D.L.R. (4th) 681; Sankey v Whitlam (1978), 142 C.L.R. 1; Makanjuola v Commissioner of Police of the Metropolis,  3 All E.R. 617; RJR-MacDonald Inc. v Canada (Attorney General),  3 S.C.R. 199; Commission des droits de la personne v Attorney General of Canada,  1 S.C.R. 215; Reference re Amendments to the Residential Tenancies Act (N.S.),  1 S.C.R. 186; MacMillan Bloedel Ltd. v Simpson,  4 S.C.R. 725; R. v Eldorado Nuclear Ltd.,  2 S.C.R. 551.
Canada Evidence Act, R.S.C. 1985, c. C-5: s. 37, s. 38, s. 39.
Constitution Act, 1867: s.96.
Ombudsman Act, R.S.B.C. 1996, c. 340.
Authors and other references
Salisbury, Lord. Report of the Committee of Privy Counsellors on Ministerial Memoirs. London: HMSO, January 1976.
David Sgayias, Q.C., and Christopher Rupar, for the appellants (instructed by The Deputy Attorney General of Canada, Ottawa).
Richard R. Sugden, Q.C., and Craig P. Dennis, for the respondents (instructed by Sugden, McFee & Roos, Vancouver).
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