Maurice Goguen and Gilbert Albert (Applicants)
v.
Frederick Edward Gibson (Respondent)
Thurlow C.J.—Ottawa, January 24, February 24,
March 1, 2, 3, 4, 7, 8, 9, 10, 11, 12 and April 28,
1983.
Evidence — Disclosure of information — Objection relating
to international relations or national defence or security —
Applicants charged with breaking, entering and committing
theft following investigation by Security Service of R.C.M.P.
— Tapes recording membership lists of political party
removed from premises and copied — Applicants requesting
production of documents — Respondent objecting, under s.
36.1(1) of Canada Evidence Act, to disclosure of information
on grounds of injury to national security and international
relations — Application under s. 36.2(1) of Act, for determi
nation of objection — Applicants arguing disclosure essential
for defence — Under s. 36.1(2), Court may examine informa
tion and order disclosure if public interest in disclosure out
weighs in importance specified public interest — Objections
upheld and application dismissed — Legislation recognizing
cases where public interest in secrecy of information on nation
al defence outweighed by public interest in disclosure in litiga
tion — S. 36.1(2) conferring on Court discretion as to whether
examination should be made — If balance equal between
conflicting public interests, examination held to ascertain
whether preponderance of importance in favour of disclosure
exists — In case at bar, no apparent case for disclosure, so no
examination of information — Large volume and comprehen
siveness of material requested injurious to Security Service
Likelihood of injury although information sought 10 years old
— Charges not capital — Disclosure not essential to appli
cants since witnesses available — Applicants' rights to full
defence under common law and federal legislation matters for
Court which tries accused — Canada Evidence Act, R.S.C.
1970, c. E-10, ss. 36.1, 36.2, 36.3, as en. by S.C. 1980-81-82-
83, c. 111, s. 4 — Federal Court Act, R.S.C. 1970 (2nd Supp.),
c. 10, s. 41, as rep. by S.C. 1980-81-82-83, c. 111, s. 3.
The applicants have been committed for trial in the Superior
Court of Quebec on charges of breaking, entering and commit
ting theft. The applicants were involved, as R.C.M.P. officers,
in "Operation Ham", an investigation undertaken by the Secu
rity Service of the R.C.M.P. whereby premises were entered
and computer tapes recording membership lists of a political
party were removed, copied and replaced. At the applicants'
request, a subpoena duces tecum was issued addressed to the
respondent, the Deputy Solicitor General of Canada, and to the
Clerk of the Privy Council. Pursuant to subsection 36.1(1) of
the Canada Evidence Act, the respondent objected, by certifi
cate, to the production of certain documents on the grounds
that their disclosure would be injurious to the national security
of Canada and to international relations. The applicants then
applied, under subsection 36.2(1) of the Act, for determination
of the objection pursuant to subsection 36.1(2). The applicants
argue that the evidence objected to is essential for their
defence—they intend to prove that "Operation Ham" was not a
criminal act; that it was part of the investigative methods
approved by the R.C.M.P., and that they did not act fraudu
lently in taking part in it. They also contend that the disclosure
is not injurious to Canadian national security and international
relations and that the public interest in disclosure outweighs in
importance the public interest alleged in the certificate. Subsec
tion 36.1(1) of the Act provides that a Minister of the Crown or
other person interested may object to the disclosure of informa
tion on grounds of specified public interest. Subsection 36.1(2)
provides that a superior court may examine the information
and order its disclosure if it concludes that the public interest in
disclosure outweighs in importance the specified public interest.
Held, the objections taken in the certificate should be upheld
and the application dismissed. In the circumstances of this case,
the public interest in immunity from disclosure was not out
weighed in importance by the public interest in disclosure.
Subsection 36.1(2) of the Canada Evidence Act seems to
recognize that there may be instances where the public interest
in national security and international relations is outweighed by
the public interest in the proper administration of justice in
which disclosure is necessary for purposes of litigation. When
disclosure is sought for use in criminal proceedings, the gravity
of the charge and the severity of the punishment are important
factors in choosing between the competing public interests.
Public interest immunity from disclosure required by an
accused has been upheld in England. Even if there is no
Canadian precedent to that effect, it can be said that never has
a claim for immunity of disclosure on grounds of injury to
national security and international relations been overruled.
Indeed, it is unlikely that such a claim, if properly made, could
have been overruled under the previous legislation (i.e. section
41 of the Federal Court Act as repealed by section 3 of S.C.
1980-81-82-83, c. 11l ).
Subsection 36.1(2) confers on the Court authority to exam
ine the information sought, and the discretion as to whether
such an examination should be made. The subsection uses the
word "may", and the judge hearing the application must, on
the material before him, be persuaded that the case for disclo
sure outweighs the case for immunity, or at least that the
balance is equal and calls for an examination whose object will
be to ascertain whether a preponderance of importance in
favour of disclosure exists. If no apparent case for disclosure is
made, then the Court is not required to examine the
information.
As to the importance of public interest in national security:
there is nothing in the material before the Court which would
afford any reason to discount the statement in the respondent's
certificate that disclosure would be injurious to national secu
rity and international relations. Indeed, the large volume and
comprehensiveness of the material requested would lay bare to
the world the whole structure of the Security Service. Secrecy
in national security and international relations matters is essen
tial. The process of assembling and sifting information is
carried out in the interests of public safety. Secrets relating to
such matters may have to be preserved indefinitely. The likeli
hood of injury does not diminish with the passage of time.
As to the importance of public interest in disclosure: the
offences charged are not capital and the prospect of severe
punishment should not, in view of the circumstances of "Opera-
tion Ham", be given undue weight in the scale. It is not
feasible, at this stage, to consider the relevancy of the informa
tion sought to the issues likely to arise at the trial. Although the
applicants' affidavits state the belief that the information is
essential to their defence, the Court is unable to conclude that
the disclosure of the information is of critical importance to
their defence, particularly in view of the availability of wit
nesses able to testify as to at least some of the matters referred
to by the applicants.
As the evidence preponderates heavily in favour of the
importance of public interest in national security and interna
tional relations, it is unnecessary to examine any of the infor
mation in question: the authority to examine should only be
exercised when necessary and there is no reason to suppose that
such an examination would indicate that it should be disclosed.
Finally, the applicants' rights under the common law, the
Criminal Code, the Canadian Bill of Rights and the Canadian
Charter of Rights and Freedoms to make full answer and
defence, are not at issue. Subsection 36.1(2) calls for a determi
nation of which of the two conflicting public interests out
weighs the other in importance. Whether the effect of such a
determination, when made, is to interfere with the right to
make full answer and defence is a matter for the Court which
tries the accused.
CASES JUDICIALLY CONSIDERED
APPLIED:
Reg. v. Lewes Justices, Ex parte Secretary of State for
Home Department, [1973] A.C. 388 (H.L.); R. v. Secre
tary of State for the Home Department, Ex parte
Hosenball, [ 1977] 3 All ER 452 (C.A.); Burmah Oil Co.
Ltd. v. Governor and Company of the Bank of England
and Another, [1980] A.C. 1090 (H.L.); Conway v.
Rimmer and Another, [ 1968] A.C. 910 (H.L.); Sankey v.
Whittam (1978), 21 ALR 505 (H.C.).
DISTINGUISHED:
Smallwood v. Sparling, [1982] 2 S.C.R. 686; 44 N.R.
571.
CONSIDERED:
Rex v. Hardy (1794), XXIV St. Tr. 199; Marks v.
Beyfus (I890), 25 Q.B.D. 494 (C.A.); D. v. National
Society for the Prevention of Cruelty to Children, [1978]
A.C. 171 (H.L.); Regina v. Snider, [1954] S.C.R. 479,
affirming [1953] 2 D.L.R. 9 (B.C. C.A.); The Solicitor
General of Canada et al. v. The Royal Commission of
Inquiry into the Confidentiality of Health Records in
Ontario et al., [19811 2 S.C.R. 494; Attorney General of
the Province of Quebec et al. v. The Attorney General of
Canada et al., [1979] 1 S.C.R. 218; Robinson v. State of
South Australia [No. 2], [1931] A.C. 704 (P.C.); Air
Canada and Others v. Secretary of State for Trade and
Another, [1983] 2 W.L.R. 494; [1983] 1 All ER 910
(H.L.).
REFERRED TO:
Attorney-General v. Briant (1846), 15 M. & W. 168; Ex
parte Attorney-General; Re Cook and Others (1967), 86
W.N. (Pt. 2) (N.S.W.) 222 (C.A.); Duncan and Another
v. Cammell, Laird and Company, Limited, [1942] A.C.
624 (H.L.); Attorney-General v. Jonathan Cape Ltd. and
Others, [1976] 1 Q.B. 752.
COUNSEL:
Pierre Lamontagne, Q.C. and Richard Mon-
geau for applicant Maurice Goguen.
Harvey Yarosky and Morris Fish for appli
cant Gilbert Albert.
Joseph R. Nuss, Q.C., Lorne Morphy, Q.C.,
Allan Lufty, Gary H. Waxman and John B.
Laskin for respondent, Attorney General of
Canada and Solicitor General of Canada.
SOLICITORS:
Lamontagne, Mongeau, Montreal, for appli
cant Maurice Goguen.
Yarosky, Fish, Zigman, Isaacs & Daviault,
Montreal, for applicant Gilbert Albert.
Ahern, Nuss & Drymer, Montreal, for
respondent, Attorney General of Canada and
Solicitor General of Canada.
The following are the reasons for judgment
rendered in English by
THURLOW C.J.: The applicants, Maurice
Goguen and Gilbert Albert, have been committed
for trial in the Superior Court of Quebec at Mon-
treal on charges under the Criminal Code, R.S.C.
1970, c. C-34, of conspiring with others to break
and enter and commit theft and of breaking and
entering and committing theft. The conspiracy is
alleged to have occurred between August 8, 1972,
and January 8, 1973, and the breaking and enter
ing on January 8, 1973.
On January 5, 1983, a subpoena was issued by
the Superior Court at the request of the applicants
addressed to the respondent, Frederick Edward
Gibson, who is the Deputy Solicitor General of
Canada, and to Gordon F. Osbaldeston, the Clerk
of the Privy Council of Canada, requiring each of
them to attend the Court and to bring with them a
large number of documents, said to amount in all
to some 8,200 pages, enumerated, in the case of
Mr. Gibson, in a list of some twenty-eight items of
volumes and files and, in the case of Mr. Osbaldes-
ton, in a list of some thirty other items, some of
which appear from their description in the list to
be volumes and others to be single documents.
Service of the subpoena was effected the same day.
On January 12, 1983, the respondent filed in the
Superior Court a certificate which, after identify
ing Mr. Gibson as the Deputy Solicitor General of
Canada, proceeded as follows:
2. 1 have personally examined and carefully considered the
documents and files, insofar as they exist and insofar as they
are not confidences of the Queen's Privy Council for Canada,
set out in the subpoena issued to me by this Honourable Court
on January 5, 1983 to the extent that the said documents and
files pre-date February 1973.
3. 1 have also personally examined and carefully considered the
documents listed in Schedule "A" annexed hereto, the said
documents being a portion of those set out in the subpoena
issued by this Honourable Court on January 5, 1983 to the
Clerk of the Privy Council, Mr. Gordon F. Osbaldeston.
4. The documents and files referred to in the subpoena
described in paragraph 2 of this certificate and in Schedule
"A" form part of the records of the Security Service of the
Royal Canadian Mounted Police (hereinafter referred to as
"the Security Service").
5. With respect to the documents and files that I have referred
to in paragraph 2 of this certificate as having examined and
considered, I certify to this Honourable Court pursuant to
section 36.1(1) of the Canada Evidence Act, R.S.C. 1970, c.
E-10 as amended by 1980-81-82 (Can.) c.111, that production
or discovery of the documents or disclosure of the information
contained in the said documents, beyond that which has already
been made public as a result of the proceedings or the report of
the Commission of Inquiry Concerning Certain Activities of the
Royal Canadian Mounted Police established by Order-in-
Council P.C. 1977-1911 of July 6, 1977 pursuant to Part I of
the Inquiries Act, R.S.C. 1970, c.1-13, would be injurious to the
national security of Canada and to international relations and I
object to the disclosure of the documents and files and the
information contained therein.
6. With respect to the documents that 1 have referred to in
paragraph 3 of this certificate as having examined and con
sidered, I further certify to this Honourable Court pursuant to
section 36.1(1) of the Canada Evidence Act, R.S.C. 1970, c.
E-10 as amended by 1980-81-82 (Can.) c.111, that production
or discovery of the documents or disclosure of the information
contained in the said documents, beyond that which has already
been made public as a result of the proceedings or the report of
the Commission of Inquiry Concerning Certain Activities of the
Royal Canadian Mounted Police established by Order-in-
Council P.C. 1977-1911 of July 6, 1977 pursuant to Part I of
the Inquiries Act, R.S.C. 1970, c.l-13, would be injurious to the
national security of Canada and to international relations and I
object to the disclosure of the documents and the information
contained therein.
7. 1 do further certify to this Honourable Court that production
or discovery of the documents or the disclosure of the informa
tion to which I have objected in, paragraphs 5 and 6 of this
certificate would be injurious to the detection, prevention or
suppression of subversive or hostile activities directed against
Canada or detrimental to the security of Canada. More par
ticularly and without limiting the generality of the foregoing,
production or discovery of the documents or disclosure of the
information contained in the said documents would identify or
tend to identify: a) human sources and technical sources of the
Security Service; b) targets of the Security Service; c) methods
of operation and the operational and administrative policies of
the Security Service, including the specific methodology and
techniques used in the operations of the Security Service and in
the collection, assessment and reporting of security intelligence;
and d) relationships that the Security Service maintains with
foreign security and intelligence agencies and information
obtained from said foreign agencies.
8. I understand that oral evidence may be given in these
proceedings. If oral evidence were sought to be given of the
contents of the documents and files to the disclosure of which I
have in this certificate objected, I would wish to object to such
evidence on the same grounds as those herein before set out in
relation to the documents in question.
To this certificate was attached a schedule list
ing nineteen of the items of the list which the
subpoena required Mr. Osbaldeston to bring to the
Court.
The following day, January 13, 1983, the appli
cants applied under section 36.2 of the Canada
Evidence Act, R.S.C. 1970, c. E-10, as enacted by
S.C. 1980-81-82-83, c. 111, s. 4, for determination
of the objection in accordance with subsection
36.1(2) of that Act.
Sections 36.1, 36.2 and 36.3 of the Canada Evi
dence Act
These provisions are new. They are in some
respects extraordinary and they make a consider
able change in the law. They were enacted as
Schedule III of an Act entitled "An Act to enact
the Access to Information Act and the Privacy
Act, to amend the Federal Court Act and the
Canada Evidence Act, and to amend certain other
Acts in consequence thereof" and they were pro-
claimed in force in November 1982. At the same
time a provision of the same Act repealing section
41 of the Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, as rep. by S.C. 1980-81-82-83, c.
111, s. 3, was also brought into effect. For conve
nience I shall set it out first and the relevant
portions of the new provisions thereafter:
Federal Court Act
41. (1) Subject to the provisions of any other Act and to
subsection (2), when a Minister of the Crown certifies to any
court by affidavit that a document belongs to a class or
contains information which on grounds of a public interest
specified in the affidavit should be withheld from production
and discovery, the court may examine the document and order
its production and discovery to the parties, subject to such
restrictions or conditions as it deems appropriate, if it concludes
in the circumstances of the case that the public interest in the
proper administration of justice outweighs in importance the
public interest specified in the affidavit.
(2) When a Minister of the Crown certifies to any court by
affidavit that the production or discovery of a document or its
contents would be injurious to international relations, national
defence or security, or to federal-provincial relations, or that it
would disclose a confidence of the Queen's Privy Council for
Canada, discovery and production shall be refused without any
examination of the document by the court.
Canada Evidence Act
36.1 (1) A Minister of the Crown in right of Canada or other
person interested may object to the disclosure of information
before a court, person or body with jurisdiction to compel the
production of information by certifying orally or in writing to
the court, person or body that the information should not be
disclosed on the grounds of a specified public interest.
(2) Subject to sections 36.2 an 36.3, where an objection to
the disclosure of information is made under subsection (1)
before a superior court, that court may examine or hear the
information and order its disclosure, subject to such restrictions
or conditions as it deems appropriate, if it concludes that, in the
circumstances of the case, the public interest in disclosure
outweighs in importance the specified public interest.
Subsection (3) provides for determination of the
objection by the Federal Court—Trial Division or
the superior court of the province as the subsection
directs, but subject to sections 36.2 and 36.3. The
section contains provisions for appeals from such
determinations.
36.2 (1) Where an objection to the disclosure of information
is made under subsection 36.1(1) on grounds that the disclosure
would be injurious to international relations or national defence
or security, the objection may be determined, on application, in
accordance with subsection 36.1(2) only by the Chief Justice of
the Federal Court, or such other judge of that court as the
Chief Justice may designate to hear such applications.
(2) An application under subsection (1) shall be made within
ten days after the objection is made or within such further or
lesser time as the Chief Justice of the Federal Court, or such
other judge of that court as the Chief Justice may designate to
hear such applications, considers appropriate.
(3) An appeal lies from a determination under subsection (1)
to the Federal Court of Appeal.
(4) Subsection 36.1(6) applies in respect of appeals under
subsection (3), and subsection 36.1(7) applies in respect of
appeals from judgments made pursuant to subsection (3), with
such modifications as the circumstances require.
(5) An application under subsection (1) or an appeal brought
in respect of such application shall
(a) be heard in camera; and
(b) on the request of the person objecting to the disclosure of
information, be heard and determined in the National Capital
Region described in the schedule to the National Capital Act.
(6) During the hearing of an application under subsection (1)
or an appeal brought in respect of such application, the person
who made the objection in respect of which the application was
made or the appeal was brought shall, on the request of that
person, be given the opportunity to make representations ex
parte.
36.3 (1) 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.
So far as I am aware the present application for
determination is the first to be made under any of
these provisions and it is undoubtedly the first to
be made under section 36.2.
Section 36.2 is extraordinary in providing that
the application is to be determined only by "the
Chief Justice of the Federal Court, or such other
judge of [the Federal Court] as [he] may desig
nate to hear such applications" and in providing by
reference to subsection 36.1(2) for the examina
tion by the Chief Justice or designated judge of
information, the disclosure of which is objected to
on grounds that disclosure would be injurious to
international relations or national defence or secu
rity. Under the repealed subsection 41(2) of the
Federal Court Act that course was not open.
A further difference in the new law is that the
objection need no longer be taken by the affidavit
of a Minister of the Crown but may be taken by
the oral or written certificate of a Minister of the
Crown in right of Canada or by any other person
interested. I pause to note that no challenge was
raised as to Mr. Gibson being a person entitled to
raise the objections made by him.
Another difference is that the wording
... certifies ... that a document belongs to a class or contains
information which ... should be withheld from production and
discovery ...
formerly found in subsection 41(1) of the Federal
Court Act has been dropped in favour of
... certifying ... that the information should not be dis
closed ....
The reference formerly found in subsection 41(1)
to
... the public interest in the proper administration of justice
has also been dropped in favour of
... the public interest in disclosure ....
It may also be noted that section 41 applied only
to documents. The new provisions apply to "infor-
mation", a word which is broad enough to embrace
information which is found in documents and
other information as well.
It appears to me that by section 36.2 Parliament
manifests its will that in future a claim for
immunity on grounds that disclosure would be
injurious to international relations, national
defence or national security is no longer to be
treated as absolute but is to be subject to examina
tion by a court. Further, the party taking the
objection need no longer be a Minister of the
Crown but whether taken by a Minister or by
someone else the claim by itself will not necessarily
prevent disclosure. The matter is to be left to the
judgment of a court. In this the circumstance of
who it is that asserts the objection and what his
interest in and knowledge of the need for main
taining immunity from disclosure may have its
bearing. On the other hand, the sensitivity of the
information and, hopefully, the consistency of
approach and the standards to be applied in reach
ing a decision are protected to some extent by
providing, at least in the court of first instance, for
a single designated judge to hear the application
and pass upon such objections.
But it is, I think, important to note that while
the authority to determine the matter is trans-
ferred from a Minister of the Crown to the Court,
the public interest in maintaining immune from
disclosure information the disclosure of which
would be injurious to national defence or national
security or international relations remains the
same. Its importance is as great and as weighty as
it always has been. One is reminded of the maxim:
Salus populi est supremo lex. What seems to be
recognized by the legislation, however, is that
there may be instances in which, depending on the
particular circumstances, that public interest may
be outweighed in importance by another public
interest, that of the disclosure in the public inter
est, that is to say, in civil and criminal litigation,
that of the due administration of justice, an inter
est the importance of which will itself depend on
the circumstances of the particular case. In a small
claims action its importance might not easily pre
vail over that of the public interest in national
security or international relations. In a criminal
prosecution for a capital or other serious offence
its importance could weigh very heavily if the
information is shown to be of critical importance
for the defence or for the prosecution.
Thus in Rex v. Hardy', Lord Eyre C.J., in
relation to the privilege from disclosure of sources
of police information, observed:
... there is a rule which has universally obtained on account of
its importance to the public for the detection of crimes, that
those persons who are the channel by means of which that
detection is made, should not be unnecessarily disclosed: if it
can be made appear that really and truly it is necessary to the
investigation of the truth of the case that the name of the
person should be disclosed, I should be very unwilling to stop it
In Marks v. Beyfus 2 , Lord Esher M.R., after
citing the rule against disclosure of the names of
informers, said:
Now, this rule as to public prosecutions was founded on
grounds of public policy, and if this prosecution was a public
prosecution the rules attaches; I think it was a public prosecu
tion, and that the rule applies. I do not say it is a rule which can
never be departed from; if upon the trial of a prisoner the judge
should be of opinion that the disclosure of the name of the
informant is necessary or right in order to shew the prisoner's
innocence, then one public policy is in conflict with another
public policy, and that which says that an innocent man is not
to be condemned when his innocence can be proved is the policy
that must prevail. But except in that case, this rule of public
policy is not a matter of discretion; it is a rule of law, and as
such should be applied by the judge at the trial, who should not
' (1794), XXIV St. Tr. 199, at p. 808.
2 (1890), 25 Q.B.D. 494 (C.A.), at pp. 498 and 500.
treat it as a matter of discretion whether he should tell the
witness to answer or not.
In the same case Bowen L.J. said:
The only exception to such a rule would be upon a criminal
trial, when the judge if he saw that the strict enforcement of
the rule would be likely to cause a miscarriage of justice, might
relax it in favorem innocentiae; if he did not do so, there would
be a risk of innocent people being convicted.
In D. v. National Society for the Prevention of
Cruelty to Children', Lord Simon of Glaisdale,
after referring to the privilege from disclosure of
sources of police information, said:
Here, however, the law adds a rider. The public interest that
no innocent man should be convicted of crime is so powerful
that it outweighs the general public interest that sources of
police information should not be divulged, so that, exceptional
ly, such evidence must be forthcoming when required to estab
lish innocence in a criminal trial: see the citations in Reg. v.
Lewes Justices, Ex parte Secretary of State for the Home
Department [1973] A.C. 388, 408A. It would appear that the
balance of public interest has been struck, both in the general
rule and in its rider, in such a way as to conduce to the general
advantage of society, with the public interest in the administra
tion of justice as potent but not exclusive.
In Regina v. Snider 4 , the British Columbia
Court of Appeal and the Supreme Court of
Canada' held that in a criminal prosecution the
public interest in the administration of justice
prevailed over the public interest asserted by the
Minister of National Revenue in keeping income
tax returns immune from disclosure.
Sloan C.J.B.C., in the course of his reasons,
observed:
It seems to me that in circumstances of this kind some
assistance may be obtained from the decisions in Marks v.
Beyfus (1890), 25 Q.B.D. 494 at p. 498, and Humphrey v.
Archibald (1893) 20 O.A.R. 267 at p. 270. As I read these
cases they establish the principle that where public interests
conflict that which is paramount must prevail. That being so it
is my view that the due administration of public justice is
paramount to the collection of Crown revenue.
The same reasoning it seems to me would apply should an
accused person desire the production of returns for the purpose
of proving his innocence. There would be in this instance the
lack of Government conflict but it seems to me that other basic
3 [1978] A.C. 171 (H.L.), at p. 232.
4 [1953] 2 D.L.R. 9 (B.C. C.A.), at pp. 13, 14, 16 and 43.
5 [1954] S.C.R. 479, at p. 487.
principles in opposition to those relied upon by the Minister
cannot be ignored. In my opinion it is in the public interest that
the life and liberty of an innocent person should not be unjustly
imperilled. That interest is paramount and must also prevail.
To that end then it is my view the trial Judge in a criminal case
should be entitled to rule on the objection of the Minister to the
same extent and for the same purpose when returns are sought
by an accused person to prove his innocence as when the
Attorney-General seeks their production as an aid in the pros
ecution of a man charged with a crime: Marks v. Beyfus,
supra, and Humphrey v. Archibald, supra.
My view rests upon the principle that where public interests
conflict that which is paramount—in this instance the adminis
tration of criminal justice—must prevail. The Courts and not
the Minister of National Revenue are the custodians of that
justice.
Robertson J.A., after reviewing the earlier
authorities, held:
The result of these decisions in my opinion is to hold that
where two public policies are in conflict, that which is para
mount must prevail. The public policy relied upon by the
Minister of National Revenue has only to do with the collection
of revenue, while the other public policy, viz., that an innocent
person should not be convicted, vitally affects the liberty of the
subject, and therefore in my opinion there can be no question
that it is paramount.
In the Supreme Court of Canada, Kellock J.
summed the matter up as follows:
There is, accordingly, not only a public interest in maintaining
the secrecy of documents where the public interest would
otherwise be damnified, as, for example, where disclosure
would be injurious to national defence or to good diplomatic
relations, or where the practice of keeping a class of document
is necessary for the proper functioning of the public service, but
there is also a public interest which says that "an innocent man
is not to be condemned when his innocence can be proved"; per
Lord Esher M.R., in Marks v. Beyfus ((1890) 25 Q.B.D. 494
at 498). It cannot be said, however, that either the one or the
other must invariably be dominant.
It is quite apparent from these authorities that
the public interest in the due administration of
criminal justice is one of great importance, an
importance that is particularly weighty when dis
closure is required in order to establish the inno
cence of a person accused of a crime. Even so,
however, the importance will, I think, vary with
the gravity of the charge and the severity of the
punishment which could be expected to result from
a conviction. In Rex v. Hardy, to which reference
has been made, the charge was high treason, the
punishment for which at that time was to be
publicly hanged and quartered. The importance of
the public interest in the due administration of
justice would hardly be as great if the information
were required today for the defence of a traffic
charge, though even in such a case the principle
applies and the public interest in the due adminis
tration of justice can never be downgraded or
regarded as light or weak.
Important as that public interest is, however, I
think it is apparent from the nature of the subject-
matter of international relations, national defence
and national security that occasions when the
importance of the public interest in maintaining
immune from disclosure information the disclosure
of which would be injurious to them is outweighed
by the importance of the public interest in the due
administration of justice, even in criminal matters,
will be rare.
In Reg. v. Lewes Justices, Ex parte Secretary of
State for Home Department 6 , Lord Salmon said of
this public interest:
Clearly any evidence by a Minister of State commands the
highest respect. If protection is claimed on the ground that
disclosure of the contents of a document would imperil the
safety of the state or diplomatic relations, then the courts would
without question normally allow the claim. These are topics
particularly within the province of the executive but of which
the courts have little, if any, experience. What might appear
innocuous to the uninitiated may in reality reveal important
defence secrets or cause diplomatic difficulties.
In R. v. Secretary of State for the Home
Department, Ex parte Hosenba11 7 , Lord Denning
M.R. described the importance of the public inter
est as follows:
The public interest in the security of the realm is so great that
the sources of the information must not be disclosed, nor should
the nature of the information itself be disclosed, if there is any
risk that it would lead to the sources being discovered. The
reason is because, in this very secretive field, our enemies might
try to eliminate the source of information. So the sources must
not be disclosed. Not even to the House of Commons. Nor to
any tribunal or court of inquiry or body of advisers, statutory or
non-statutory, save to the extent that the Home Secretary
thinks safe. Great as is the public interest in the freedom of the
individual and the doing of justice to him, nevertheless in the
last resort it must take second place to the security of the
country itself.
In D. v. National Society for the Prevention of
Cruelty to Children, Lord Simon of Glaisdale said
[at page 233]:
6 [1973] A.C. 388 (H.L.), at p. 412.
7 [1977] 3 All ER 452 (C.A.), at p. 460.
Then, to take a further step still from the public interest in
the administration of justice, the law recognises other relevant
public interests which may not always even be immediately
complementary. For example, national security. If a society is
disrupted or overturned by internal or external enemies, the
administration of justice will itself be among the casualties.
Silent enim leges inter arma. So the law says that, important as
it is to the administration of justice that all relevant evidence
should be adduced to the court, such evidence must be withheld
if, on the balance of public interest, the peril of its adduction to
national security outweighs its benefit to the forensic process—
as to which, as regards national security in its strictest sense, a
ministerial certificate will almost always be regarded as conclu
sive: see Lord Parker of Waddington in The Zamora [1916] 2
A.C. 77, 107.
Finally, in The Solicitor General of Canada et
al. v. The Royal Commission of Inquiry into the
Confidentiality of Health Records in Ontario et
al. 8 , Martland J. wrote:
The foundation for the existence of this rule of law, which
evolved in respect of the field of criminal investigation, is even
stronger in relation to the function of the police in protecting
national security. A large number of the instances in which, in
the present case, it was sought to obtain from the police the
names of their informants concerned police investigation into
potential violence against officers of the state, including heads
of state. These investigations were admittedly proper police
functions. The rule of law which protects against the disclosure
of informants in the police investigation of crime has even
greater justification in relation to the protection of national
security against violence and terrorism.
On the present application counsel for the appli
cants submitted on more than one occasion that no
claim for public interest immunity from disclosure
of information required by a person accused of a
criminal offence has ever been upheld in this
Country and that this Court should not be the first
to create such a precedent. Immunity from disclo
sure was, however, upheld in England in Attorney-
General v. Briant 9 and in New South Wales in Ex
parte Attorney-General; Re Cook and Others. 10
Assuming, however, that there is no such Canadi-
an precedent, it is, I think, equally correct that on
no occasion has a claim for immunity from disclo
sure of information on grounds of injury to nation
al security or international relations been over
ruled. Indeed it is unlikely that such a claim if
8 [1981] 2 S.C.R. 494, at p. 537.
9 (1846), 15 M. & W. 168.
10 (1967), 86 W.N. (Pt. 2) (N.S.W.) 222 (C.A.).
properly made could have been overruled under
the previous legislation. In Attorney General of the
Province of Quebec et al. v. The Attorney General
of Canada et al.", Pigeon J. referred to the situa
tion as follows [at pages 248-249]:
No question is raised as to the constitutional validity and
applicability of s. 41, and I find it unnecessary to review the
well known decisions of the House of Lords in Duncan v.
Cammell Laird & Co. Ltd. ([1942] A.C. 624) and Conway v.
Rimmer ([1968] A.C. 910), in which somewhat different views
were taken of the nature of the privilege in question at common
law. Parliament has subsequently enacted explicit provisions
which spell out the law for Canada and the affidavit submitted
to the Commissioner was obviously made under subs. 2 of s. 41.
There was much discussion at the hearing whether such an
affidavit is really conclusive or may somehow be challenged. I
do not find it necessary to decide this point because, if such an
affidavit can be challenged this may be done only before a
court of competent jurisdiction and a commissioner is not such
a court and does not enjoy the powers of such a court.
But while subsection 36.1(2) now permits
examination by the Court of the information
sought, the subsection, in my opinion, also mani
fests an intention to confer on the Court a discre
tion as to whether or not to make such an
examination.
In a long series of cases decided on the common
law relating to what was formerly referred to as
"Crown privilege" and now as "public interest
privilege" it has been held that the court has
authority to examine documents in respect of
which privilege is claimed, for the purpose of
deciding whether the claim should be overruled. It
has also been held that it is for the court to decide
whether or not a sufficient case has been made out
to persuade the court of the need to examine the
documents for that purpose. These cases, which
include Robinson v. State of South Australia (No.
21 12 , Conway v. Rimmer and Another'', Burmah
Oil Co. Ltd. v. Governor and Company of the
Bank of England and Another 14 , and Air Canada
and Others v. Secretary of State for Trade and
" [1979] 1 S.C.R. 218.
12 [1931] A.C. 704 (P.C.).
13 [1968] A.C. 910 (H.L.).
14 [1980] A.C. 1090 (H.L.).
Another 15 , are civil litigation cases in which the
issues decided arose at the discovery stage. In
some instances, notably the Robinson and Air
Canada cases, the judgments turn at least to some
extent on the wording of the rule of the court
relating to discovery of documents. The English
rule, Order 24, rule 13, reads:
13.—(1) No order for the production of any documents for
inspection or to the Court shall be made under any of the
foregoing rules unless the Court is of opinion that the order is
necessary either for disposing fairly of the cause or matter or
for saving costs.
(2) Where on an application under this Order for production
of any document for inspection or to the Court privilege from
such production is claimed or objection is made to such produc
tion on any other ground, the Court may inspect the document
for the purpose of deciding whether the claim or objection is
valid.
Similarly worded rules are in effect in many
jurisdictions. Rule 457 of the Federal Court Rules
is roughly equivalent to the second paragraph of
the English rule.
In Robinson v. State of South Australia [No.
2], the Privy Council, after holding that the Court
had authority to order disclosure notwithstanding
a claim for privilege and to inspect for the purpose
of deciding whether to make such an order, went
on to hold that the Rule of Court, which was
similar to the English rule, was broad enough to
refer to claims for privilege of a public interest
nature and thus to govern the procedure to be
followed in dealing with such a claim. That view
was disapproved by the House of Lords in Duncan
and Another v. Cammell, Laird and Company,
Limited 16 . But in Air Canada and Others v.
Secretary of State for Trade and Another four of
the five law lords who heard the appeal referred to
the rule and the practice under it as the basis of
their reasons for deciding not to inspect the docu
ments there in question. I mention this because
here there is no such rule to apply and for that
reason some of the reasoning in the Air Canada
decision may not be applicable.
However, apart altogether from rules of court,
what subsection 36.1(2) appears to me to do is to
vest in the Court authority to examine the infor-
15 [1983] 2 W.L.R. 494; [1983] 1 All ER 910 (H.L.).
16 [1942] A.C. 624 (H.L.), at p. 641.
mation sought. The subsection uses the word
"may" which is not mandatory but permissive and
it appears to me that the nature of the application
is such that before exercising the authority to
examine the information the judge hearing the
application will have to be persuaded on the ma
terial that is before him either that the case for
disclosure, that is to say, the importance of the
public interest in disclosure, in the circumstances
outweighs the importance of the public interest in
keeping the information immune from disclosure
or, at the least, that the balance is equal and calls
for examination of the information in order to
determine which public interest is more important
in the particular circumstances. This interpreta
tion, which appears to me to be in harmony with
the approach to the problem adopted by the House
of Lords in the Air Canada case and that of the
earlier development of the law relating to exami
nation of documents by the Court in such situa
tions, is, I think, open on the wording of subsection
36.1(2) and should, I think, be adopted. In it the
object of the Court's examination, when an exami
nation takes place, will be to ascertain whether a
preponderance of importance in favour of disclo
sure exists. That seems to be the expressed inten
tion of the subsection. On the other hand, if no
apparent case for disclosure has been made out, if
the balance does not so much as appear to be even,
the preponderance obviously favours the upholding
of the objection and in such a situation I do not
think the subsection requires the Court to examine
the information to see if it will tip the balance the
other way. To interpret the subsection otherwise
would, as it seems to me, make it necessary for the
Court to examine the information in every case. I
think it is unlikely that that was Parliament's
intention and more especially so where the objec
tion is based on matters of such obvious sensitivity
as national security, national defence and interna
tional relations.
The approach to the question whether an inspec
tion should be made is discussed by Lord Wilber-
force in the Burmah Oil case, at page 1116, as
follows:
This brings me to the issue of inspection. For now it is said,
"Well, let us look at the documents and see—to do so cannot do
any harm. If there is nothing there no damage will be done: if
there is, we can weigh its importance." As presented (and to be
fair to Burmah's very able counsel, such a submission occupied
a far from prominent place in their argument) this may appear
to have some attraction. But with all respect to those who think
otherwise, I am firmly of opinion that we should not yield to
this siren song. The existing state of the authorities is against it:
and no good case can be made for changing the law. Indeed, to
do so would not in my opinion be progress.
After citing opinions expressed in a number of
cases, Lord Wilberforce continued [at page 1117]:
As to principle, I cannot think that it is desirable that the
courts should assume the task of inspection except in rare
instances where a strong positive case is made out, certainly not
upon a bare unsupported assertion by the party seeking produc
tion that something to help him may be found, or upon some
unsupported—viz., speculative—hunch of its own. In the first
place it is necessary to draw a reasonably clear line between the
responsibility of ministers on the one hand, and those of the
courts on the other. Each has its proper contribution to make
towards solution of the problem where the public interest lies—
judicial review is not a "bonum in se" it is a part—and a
valuable one—of democratic government in which other
responsibilities coexist. Existing cases, from Conway v. Rimmer
onwards, have drawn this line carefully and suitably. It is for
the minister to define the public interest and the grounds on
which he considers that production would affect it. Similarly,
the court, responsible for the administration of justice, should,
before it decides that the minister's view must give way, have
something positive or identifiable to put into the scales. To
override the minister's opinion by "amorphous" phrases, or
unsupported contentions, would be to do precisely what the
courts will not countenance in the actions of ministers. Second
ly, decisions on grounds of public interest privilege fall to be
made at first instance, by judges or masters in chambers. They
should be able to make these decisions according to simple
rules: these are provided by the law as it stands. To invite a
general procedure of inspection is to embark the courts on a
dangerous course: they have not in general the time nor the
experience, to carry out in every case a careful inspection of
documents and thereafter a weighing process. The results of
such a process may, indeed are likely, to be variable from court
to court and from case to case. This case provides an example
of opposite conclusions come to upon identical materials: see
[1979] 1 W.L.R. 473. This inevitable uncertainty is not likely
to do credit to the administration of justice and is bound to
encourage appeals.
Some years earlier Lord Reid had said in
Conway v. Rimmer and Another, at page 953:
It appears to me that, if the Minister's reasons are such that
a judge can properly weigh them, he must, on the other hand,
consider what is the probable importance in the case before him
of the documents or other evidence sought to be withheld. If he
decides that on balance the documents probably ought to be
produced, I think that it would generally be best that he should
see them before ordering production and if he thinks that the
Minister's reasons are not clearly expressed he will have to see
the documents before ordering production. I can see nothing
wrong in the judge seeing documents without their being shown
to the parties. Lord Simon said (in Duncan's case ([19421 A.C.
624, 640)) that "where the Crown is a party ... this would
amount to communicating with one party to the exclusion of
the other." I do not agree. The parties see the Minister's
reasons. Where a document has not been prepared for the
information of the judge, it seems to me a misuse of language
to say that the judge "communicates with" the holder of the
document by reading it. If on reading the document he still
thinks that it ought to be produced he will order its production.
One of the points dealt with by counsel in their
arguments was that of which side had the onus of
proof. In my view it is apparent from the foregoing
as well as from the form of subsection 36.1(2) that
the onus of showing that the public interest in
disclosure, in the circumstances, outweighs in
importance the public interest in national security
and international relations put forth in the
respondent's certificate rested on the applicants.
Counsel for the applicants drew attention to the
recent decision of the Supreme Court in Small-
wood v. Sparling" where, in dealing with a claim
for immunity put forward on grounds of Cabinet
secrecy by a former premier of Newfoundland who
had been subpoenaed to testify at a public inquiry,
Wilson J. said [at page 7071:
On the authority of the Cape case (supra) it seems to me
that the onus would be on Mr. Smallwood to establish that the
public interest in joint cabinet responsibility would be prejud
iced by any particular disclosure he was being asked to make.
Any blanket claim to immunity on this basis must, in my view,
also fail.
I do not read this passage as referring to the
onus of proof in a situation calling for determina
tion under subsection 36.1(2) of the Canada Evi
dence Act. In the Smallwood case there was no
applicable statute and the claim for immunity was
being made not by a Minister of the Crown but by
a former Minister who was seeking an injunction
enjoining the respondents from acting upon a sub
poena requiring him to testify and before any
question had been put to him or any request for
any specific information or document for which
public interest privilege could be claimed had been
made. It is thus understandable that if Mr. Small-
wood's objection to disclosure, whether taken in
the proceeding which ended with his appeal to the
Supreme Court or at the inquiry, were to succeed,
the onus would be, initially at any rate, on him to
17 [1982] 2 S.C.R. 686; 44 N.R. 571.
show that the particular information sought was
such that it would be injurious to the public inter
est to have it disclosed. As a private citizen he
would be obliged to put before the Court at least
as much information and with the like particularly
as is required by the courts when a Minister of the
Crown files an affidavit raising a claim for public
interest immunity.
I do not read the paragraph cited from the
Smallwood decision as meaning anything beyond
that. I do not think it refers to the issue as to the
relative importance of conflicting public interests.
But, whether it does or not, in the present case the
material put before me by both sides is such that,
in my view, nothing any longer turns on a question
of onus.
I turn now to the facts and the material put
before me by the parties.
At the time when the offences are alleged to
have been committed, that is to say, between
August 8, 1972, and January 8, 1973, both appli
cants were non-commissioned officers of the Royal
Canadian Mounted Police [hereinafter referred to
as the R.C.M.P.], stationed in Montreal and
employed in the Security Service of that force. The
charges arise out of what has been known as the
"Ham" operation, an episode in which a number
of officers and other ranks of the Security Service
participated and, in the course of which, premises
were entered and computer tapes recording mem
bership lists of a political party were removed and
copied and then replaced. Nine other members or
former members of the force are similarly charged.
In one case, that of Inspector Claude Vermette,
the trial of the charges began on April 13, 1982,
and continued until May 7, 1982, when a mistrial
was declared. That prosecution was subsequently
stayed by order of the Superior Court, an order
which I was informed is under appeal by the
Crown.
Earlier there had been two public enquiries into
matters which included the "Ham" operation. One
of these was the McDonald Commission enquiry
established by Order in Council P.C. 1977-1911 of
July 6, 1977, pursuant to Part I of the Inquiries
Act, R.S.C. 1970, c. I-13, to investigate and report
on, inter alia, activities of the R.C.M.P. "not
authorized or provided for by law." Evidence was
taken by the Commission over a period of several
years and several reports were made which includ
ed references to the "Ham" operation and a spe
cial chapter on it which has not been published.
The other enquiry was by the Keable Commission
established by the Government of the Province of
Quebec.
Procedure
As no rules of procedure have been established
for an application brought pursuant to subsection
36.2(1), on lodging the application, counsel for the
applicants also applied for an order for directions
on the hearing of which on January 24, 1983, it
was directed, inter alia:
2. That the Applicants, on or before February 7th, 1983, file in
the Registry of the Federal Court at Ottawa the affidavit and
other evidence to be referred to in support of their position
together with a memorandum stating the facts on which they
rely and the points intended to be argued in support of their
position, with an appendix containing copies of the particular
portions of any evidence on which they rely in support of their
position, and deliver copies of all of the same to the
Respondent's counsel;
3. That the Respondent, on or before February 21st, 1983, file
in the Registry of the Federal Court at Ottawa the affidavit
and other evidence to be referred to in support of his position
together with a memorandum stating the facts on which he
relies and the points intended to be argued in support of his
position, with an appendix containing copies of the particular
portions of any evidence on which he relies in support of his
position, and deliver copies of all of the same to the Applicants'
counsel;
and that the matter be heard at Ottawa commenc
ing on March 1, 1983.
Applicants' Material
Pursuant to these directions the applicants filed
an affidavit of the applicant, Gilbert Albert, refer
ring to the application for determination of the
objection and the appendices thereto, reciting the
history of the charges, the subpoena and the objec
tion and referring to the aborted trial of Inspector
Vermette. Paragraphs 9, 10 and 11 are as follows:
[TRANSLATION] 9. During the said trial of Inspector Vermette
several witnesses were heard, at the request of both the pros
ecution and the defence, and in the course of the testimony
several facts reflected in the documents requested by the afore
mentioned subpoena (Appendix "C" to the aforesaid letter of
January 13, 1983), and covered by the certificate mentioned in
paragraph 6 above (Appendix "D" to the letter of January 13,
1983) were brought out; in this connection, I file the following
exhibits:
(a) a transcript of the testimony given at the trial of Inspec
tor Vermette, as Exhibit "E";
(b) all the cassettes of the tape recording of the trial of
Inspector Vermette, as Exhibit "F";
10. The circumstances and facts which led to the charges laid
against my co-applicant and myself are set forth in general in a
secret report prepared by the Commission of Inquiry Concern
ing Certain Activities of the Royal Canadian Mounted Police
(McDonald Commission), which I file as Exhibit "G";
11. To explain the background to Exhibit "G", I further file a
two-page extract from the public report of the said Commis
sion, as Exhibit "H".
The document referred to as Exhibit "G" is the
unpublished chapter of the McDonald Commission
report dealing specifically with the "Ham" opera
tion. Exhibit "H" merely puts it in context.
In the course of the nine-day hearing of the
application, several additions to this material were
admitted which have been identified by the letters
F-1, F-2, F-2(a), I, J, K, L and M.
F-1 is a cassette of the cross-examination of
Superintendent R. B. Gavin on April 30, 1982, on
an affidavit sworn by him on April 29, 1982, as to
the results of a search for documents requested by
a subpoena issued in the Vermette trial on behalf
of the defence.
F-2 is a copy of the cassette tape record of the
proceedings at the Vermette trial on April 13, 14
and 15, 1982.
F-2(a) is a copy of the reasons for judgment of
Madam Justice Barrette-Joncas given on April 19,
1982, dismissing motions made on behalf of the
defence to stay the proceedings in the Vermette
trial.
I is a copy of a memorandum dated April 21,
1971 setting out internal procedure in the
R.C.M.P. for securing authorization for carrying
out operations involving surreptitious entries on
premises. It is marked "Top Secret" but was
admitted as Exhibit D-5 at the Vermette trial and
is no longer restricted.
J is also marked "Secret" but was produced as
Exhibit D-6 at the Vermette trial and is no longer
secret. It is an R.C.M.P. memorandum apparently
written in or before 1972 setting out objectives and
goals of the technical support service known as E
Branch in the security and intelligence service or
directorate of the force.
K is a copy of the affidavit of April 29, 1982 on
which Superintendent Gavin was cross-examined.
L is an affidavit of May 3, 1982 sworn by
Robert Phillip Kaplan, the Solicitor General of
Canada, objecting under subsection 41(2) of the
Federal Court Act to the production or disclosure
of documents listed in a subpoena issued on behalf
of the defence in the Vermette trial and to testimo
ny as to the contents of such documents on the
ground that such production, disclosure and tes
timony would be prejudicial to national security.
M is a transcript of a portion of a submission
made in the course of the Vermette trial by Crown
counsel in which he indicates that he challenges
the credibility of Robert Potvin, a witness for the
defence and one of the alleged conspirators against
whom charges similar to those against the appli
cants are pending, as to the reasons for the mount
ing of the "Ham" operation.
A request by counsel for the applicants that a
copy of the record of a speech made by the
Premier of Quebec in the National Assembly
which resulted in the Vermette trial being aborted
be added to the record was opposed by counsel for
the respondent and was denied.
As a result of submissions made by counsel for
the respondent based to a large extent on the
speeches in the House of Lords in Air Canada and
Others v. Secretary of State for Trade and
Another which were given and became available
during the course of the hearing of this applica
tion, counsel for the applicants, in the course of
reply, asked for and was granted leave to file
further affidavits with respect to the applicants'
need for the documents at their trial.
Pursuant to the leave so given a further affidavit
of the applicant, Gilbert Albert, was filed on
March 21, 1983 and an affidavit of the applicant,
Maurice Goguen, was filed on March 31, 1983.
The affidavit of the applicant, Gilbert Albert,
deposes that he intends to testify at his trial and to
call Robert Potvin as a defence witness, and that
both the latter's evidence and his own are essential
to establish his defence.
Paragraph 5 of the affidavit states:
[TRANSLATION] In the course of my defence, I intend to
prove the following:
(a) Operation Ham was not a criminal operation;
(b) the said operation was undertaken for sound reasons
relating to the investigations of the Security Service of the
Royal Canadian Mounted Police;
(c) the said operation was a part of the investigative methods
discussed, planned, used and approved by "E" Branch and
the senior staff of the Security Service at the time in
question;
(d) by taking part in the said operation, I did not act
"fraudulently" or "without a colour of right";
The deponent goes on to say that his evidence
and that of Robert Potvin is essential to establish
the elements of his defence mentioned in para
graph 5, that because of objections by counsel for
the respondent and because he does not have secu
rity clearance he has not been able to see the lists
of items attached to the subpoena, that he has
been advised by his counsel that the documents
mentioned in the subpoena as well as the disclo
sure of their contents are essential for the purpose
of establishing the elements of his defence and that
the certificate of the respondent would prevent the
proof of facts which are an essential and integral
part of his defence.
The applicant, Maurice Goguen, in his affidavit,
states that should the Crown succeed in proving
that he participated in the planning or execution of
Operation Ham, he intends to testify on his own
behalf, that he also intends to call Robert Potvin
as a witness on his behalf and that should it
become necessary to offer a defence he intends,
inter alla, to prove:
a) There was no general intent to commit a crime in the
planning and execution of Operation "HAM";
b) Operation "HAM" was not a criminal act;
c) No one acted fraudulently or without colour of right in the
planning and execution of Operation "HAM";
d) There was no intent to deprive anyone, temporarily or
absolutely, of anything in the planning and execution of
Operation "HAM";
The deponent goes on to describe three areas of
investigations being conducted at the material time
by the G Branch of the Security Service, in which
he was employed, and to say that he was familiar
with the context of the documents and files of the
Security Service of the R.C.M.P. relating to two of
these areas when Operation Ham was planned and
executed and was aware of the investigation being
conducted in the third area as well, that Operation
Ham was planned and executed for serious reasons
as part of these three ongoing investigations, that
it will be necessary for him to prove the existence
of these serious reasons at his trial and that they
are based on data which the Security Service of
the R.C.M.P. had in its possession at the material
time and which are found in documents and files
of the Security Service as they existed at the time
of the planning and execution of Operation Ham.
The affidavit then proceeds:
17. Items 3 to 24 of the annex to the subpoena addressed to the
respondent are very likely to contain material directly relating
to the investigations described in paragraph 10 of this affidavit;
18. The said items would give substantial support to the
defenses mentioned in paragraph 8 of this affidavit and, with
out them, I might be deprived of the means of proper presenta
tion of my case;
19. Moreover, in order to offer a full and complete defense,
should it prove necessary to do so, I need to testify fully in
connection with the investigation described in paragraph 10 of
this affidavit, and further need the testimony of the said Robert
Potvin and of others in connection therewith;
20. Operation "HAM" would not have been planned and under
taken without the prior and continuous approval of my then
superior officers at the Headquarters of the Royal Canadian
Mounted Police in Ottawa and in Montreal;
21. Some of these superior officers are named as my co-cons
pirators in the charge laid against me;
22. Items 1, 2 and 25 to 28 of the annex to the subpoena
addressed to the respondent and items 8 to 19 of Schedule "A"
to the respondent's certificate of January 12, 1983 are relevant
to the authorization given by my said superior officers, includ
ing some of those alleged to have been my co-conspirators;
23. The said items are very likely to contain material which
would give substantial support to the issue of the intent of the
said superior officers, and their motivation, in approving Oper
ation "HAM" and, without them, I might be deprived of the
means of a proper presentation of my case;
24. Prior to my testimony before the Commission of Inquiry
Concerning Certain Activities of the Royal Canadian Mounted
Police referred to in paragraphs 5 and 6 of the said respond
ent's certificate, I read items 1 to 7 of Schedule "A" to the said
certificate, these items being excerpts from the files of the
Security Service of the Royal Canadian Mounted Police and
being relevant to the serious reasons why operation "HAM" was
authorized, planned and executed;
25. The said items are very likely to contain material which
would give substantial support to the defenses mentioned in
paragraph 8 of this affidavit and to the intent of the said
superior officers and their motivation in approving Operation
"HAM" and, without them, I might be deprived of the means of
a proper presentation of my case;
Respondent's Material
I turn now to the material put before me in
support of the objection. This consists of the first
five and eighth appendices referred to in and
accompanying the respondent's memorandum of
facts and points for argument and two further
documents received during the course of the hear
ing and numbered 9 and 10, an affidavit of the
respondent marked "Top Secret" which was
marked as filed on February 21, 1983, and then
returned to the custody of the Deputy Solicitor
General where it has remained except when in use
at the course of the hearing. Counsel for the
applicants have had access to this affidavit. The
appendices referred to are:
1. A copy of the certificate of the respondent
filed in the Superior Court.
2. The first, second and third reports of the
McDonald Commission, consisting of four
volumes in all.
3. A list of the references in the second and third
reports of the Commission to the practice of
surreptitious entries both in the Security Service
and the Criminal Investigation Branch of the
R.C.M.P.
4. A group of approximately 56 documents filed
before the McDonald Commission and there
identified as Exhibit F-1. The documents, as I
was informed, bear information the publication
of which would enable a knowledgeable person
to infer further facts which are secret.
5. This appendix is an edited version of the
documents in Appendix 4. It has been released
to the applicants.
8. Transcripts of the evidence given by the appli
cants before the McDonald Commission on
April 24 and 25, 1978.
9. A copy of an affidavit of Robert Phillip
Kaplan, Solicitor General of Canada, sworn on
April 8, 1982 and filed at the Vermette trial
objecting under subsection 41(2) of the Federal
Court Act to the disclosure of documents sought
by a subpoena issued by the Superior Court to
the Deputy Solicitor General of Canada on
grounds that the production of the documents or
the disclosure of their contents would be pre
judicial to international relations or national
security.
10. A copy of a further affidavit similar to that
numbered 9 sworn by Mr. Kaplan on April 27,
1982 objecting to the production of documents
on an attached list.
The secret affidavit of the respondent is a
lengthy document consisting of 26 pages and
having a total of 63 paragraphs. The first 16
paragraphs refer to the subpoena and the certifi
cate and set out general propositions in relation to
national security and international relations, the
reasons why secrecy of information is required,
and the ways in which disclosure of such informa
tion would be injurious to national security and
international relations.
Objection was taken by the applicants to
paragraph 6 on the ground that it expresses an
opinion which it was submitted the deponent was
not qualified to give. As a person whose career and
experience have brought him to the position of
Deputy Solicitor General, the deponent is, I think,
sufficiently qualified to state anything that is in
paragraph 6 that can be regarded as an opinion. I
would accordingly overrule the objection. I would,
however, be of the same opinion even if paragraph
6 were completely disregarded.
In the remaining 47 paragraphs of the affidavit
each of the items referred to in the certificate is
dealt with by giving (except in the cases of two
items which either were not found or in which no
documents of the relevant period were found) a
brief description of its contents and stating the
ways in which disclosure would affect national
security or international relations or both.
Applicants' Case
The basis of the applicants' case for disclosure
of the information appears from the following
excerpts from their memorandum of facts and law.
It is the contention of the applicants that the evidence objected
to is essential to allow them to offer a full answer and defence
to the charges laid against them.
It is also the contention of the applicants that the disclosure of
the evidence sought from Mr. Osbaldeston and from the
respondent, and of the oral evidence relating to the contents of
the said documents, is not injurious to the national security of
Canada and to international relations and, in the alternative,
that the public interest in disclosure outweighs in importance
the public interest outlined in the certificate.
The documents described in the subpoenas duces tecum served
upon the federal authorities are required by the accused in
order to make proof of the circumstances under which and the
purposes for which the R.C.M.P. operation in question (called
"Operation Ham") was undertaken and in order to support the
defence of good faith and honest belief in the lawfulness of the
operation.
It is not really disputed that members of the R.C.M.P. Security
Service "broke and entered" into the premises of "Les Mes-
sageries Dynamiques" during the night, took the tapes to
another building, copied the information recorded thereon, and
returned the tapes several hours later to the exact place from
which they had been taken. Nor is there any dispute about the
fact that the operation was carried out following approval at
the highest level of the R.C.M.P. Security Service. The issues
between the Crown and Defence relate to the purposes for
which the operation was undertaken and the legal consequences
flowing therefrom.
The defence maintains that "Operation Ham" was carried out
for the purpose of gathering information of importance to the
R.C.M.P. Security Service in the execution of its mandate with
respect to the following matters:
a) Investigation into the leakage of classified information of
the federal government by persons in its employ to members
of the P.Q. The R.C.M.P. had information indicating that
several leading members of the P.Q. had formed a network
that was actively engaged in efforts to obtain such informa
tion. These activities included attempts to recruit members of
the R.C.M.P. in order to get from them classified informa
tion of interest to the P.Q.
b) Investigation into interference by several foreign govern-
ments—both "friendly" and "unfriendly"—into the internal
affairs of Canada through clandestine collaboration with,
and support of, movements aimed at separating Quebec from
Canada. In this connection, the R.C.M.P. was seized with a
written request from a high official in the Prime Minister's
office to investigate information regarding a $350,000
clandestine contribution by a foreign government to the P.Q.
It should be noted that the matters described in paragraphs a)
and b) are not unrelated to one another since the same mem
bers of the P.Q. who were involved in attempts to obtain
classified government information, were also communicating
with agents of foreign government(s) referred to above.
c) Investigation directed toward the prevention of terrorist
actions in support of Quebec independence.
The R.C.M.P. was determined to prevent renewed acts of
terrorism rather than to merely react after the fact, as had
happened in the Cross and Laporte cases in 1970. In this
context, it was important for the Security Service to keep track
of the location and activities of known terrorists and their
supporters.
Although there were indications of a possible renewal of terror
ism, Pierre Vallières, who had preached violence in support of
Quebec independence, had recently appeared to change his
strategy, appealing to his followers to renounce violence in
favour of political activity through organizations such as the
P.Q. The Security Service wished to learn a) how many persons
who had been involved in terrorist activities had joined the
P.Q., b) where those persons were located and what they were
doing and c) whether there were significant groupings of them
in any of the P.Q. riding associations.
The reasons for Operation Ham, the thinking that led to it and
the explanation as to how the information recorded on the P.Q.
tapes was related to the investigations being conducted by the
R.C.M.P. Security Service at the relevant times, is found in the
testimony of Maurice Goguen, Gilbert Albert and Robert
Potvin at the trial of Inspector Claude Vermette, one of the
alleged co-conspirators, that took place before a judge of the
Quebec Superior Court, sitting with a jury, in the spring of
1982. Messrs. Goguen and Albert were called by the Crown
and Mr. Potvin testified for the Defence. All three were
members of the Security Service at the relevant times and were
involved with the Ham Operation, the first two in Montreal
and the third in Ottawa. All three are indicted as alleged
co-conspirators. It was during the cross-examination of Mr.
Potvin by Crown counsel that the Premier of Quebec unleashed
a tirade in the National Assembly that led the presiding judge,
Madam Justice Claire Barrette-Joncas, to declare a mistrial on
May 7, 1982. This was followed by a stay of proceedings
ordered by Mr. Justice Benjamin Greenberg of the Superior
Court on October 1st, 1982, an order from which the Crown
has appealed.
The debate between the Crown and Defence is not restricted to
issues of law but extends to important questions of fact, namely
the very purpose for which "Operation Ham" was conceived
and executed. In his examination of Maurice Goguen and his
cross-examination of Robert Potvin, Mr. Jean-Pierre Bonin for
the Crown challenged the explanations given by them. He
strongly suggested that the real purpose for Operation Ham
was that of identifying separatists in the federal and provincial
governments in order to prevent their promotion, and that all
the other reasons referred to above were created as justifica
tions after the fact ....
In order to defend themselves, the accused must be able to
explain fully to the jury the context in which and the purposes
for which "Operation Ham" was undertaken. They cannot do
this unless they are permitted to have access to, testify about
and produce in court the documents that they worked with and
relied upon at material times in connection with the very
matters that the operation involved. The fact that the case
concerns events that occurred almost eleven years ago accentu
ates the need for this material. In this connection, we refer your
Lordship to Appendix 3, which includes the relevant testimony
of Messrs. Goguen, Albert and Potvin at the Vermette trial,
where they express the difficulties flowing from the prohibition
against their having access to, referring to the contents of, or
producing in court the files and documents that they worked
with at the relevant times. The said documents are those
described in the subpoena to Mr. Osbaldeston and at para
graphs 1 to 24 of the subpoena to the Respondent. Paragraphs
2 and 3 of the certificate relate to them.
The foregoing relates principally to the circumstances and
purposes of "Operation Ham". Documents are required as well
in order to support the submission by the accused that they
believed the operation to be lawful, since surreptitious entries
for the purpose of obtaining information required for national
security (known as "Puma" operations) were a well-estab
lished, official method of operation within the R.C.M.P. Secu
rity Service.
The documents described in paragraphs 25 to 28 of the sub
poena to Mr. F. Gibson and at paragraph 2 of the certificate
deal with various aspects of such operations, including
R.C.M.P. policies, objectives, guidelines, planning and financ
ing.
In theft, the state of mind of an accused is particularly relevant
to his guilt or innocence. The mere taking of another's property
is not in itself a crime. The taking must be done not only with
intent to deprive that person, temporarily or absolutely, of his
property, but must be done "fraudulently and without colour of
right". The defence in the present case not only denies an intent
to deprive the owners of the tapes of their property, either
temporarily or permanently, but denies as well that the acts
which form the subject of these charges were done "fraudulent-
ly and without colour of right".
At the Vermette trial Crown counsel questioned witnesses as to
the reasons for the Ham Operation and expressed the view that
such testimony was relevant. The presiding Judge, Madam
Justice Claire Barrette-Joncas, ruled that the reasons for the
operation were admissible as relevant to the state of mind of
those who participated in its planning or execution.
The Applicants Goguen and Albert will submit at their trial
that they acted in good faith, for serious reasons connected to
their duties as members of the R.C.M.P. Security Service and
based on the information available to them through the various
files and documents that they worked with. They will submit as
well that they acted in the honest belief that their actions were
lawful. The documents described in both subpoenas and object
ed to in the certificate are required by them in order to support
their defence to the effect that Operation Ham was undertaken
for the reasons indicated above, on the basis of information
referred to above and in the belief as to its legality referred to
above.
The objection made by the Respondent, should it stand, will
prevent the accused from explaining to the jury why they
performed the acts complained of and will deprive them of
essential evidence required in support of their defence.
Respondent's Case
The respondent's answer to this is that:
1. Under subsection 36.1(2) the onus is on the
applicants to show that "in the circumstances of
the case, the public interest in disclosure outweighs
in importance the specified public interest", that
this onus is particularly heavy where the specified
public interest is the preservation from injury of
national security or international relations or, as in
this case, both, that the preservation of national
security and international relations has been recog
nized as a higher public concern than the protec
tion of other public interests and that where, as
here, the certificate reveals a valid and well-found
ed claim for public interest immunity the courts
have been reluctant to inspect documents under
objection and this is particularly so where the
public interest invoked is the protection from
injury of national security or international rela
tions. The courts have recognized as well that
information relating to national security or inter
national relations may require immunity from dis
closure indefinitely or long after information privi
leged on other grounds might safely be disclosed.
2. On an application of this kind the Court should
proceed in two stages, that is to say, to determine
first whether on the evidence for and against dis
closure there is any need for the Court to examine
the documents and that if the certificate and any
supporting material indicate that there has been a
careful consideration of the documents requested
and provide clear and convincing reasons for non-
disclosure, as it was submitted they do in this case,
the Court should dismiss the application without
examining the documents save in exceptional cir
cumstances which may be made out in a criminal
case, but which are not made out here, where an
applicant has demonstrated that a particular docu
ment of which he seeks production contains infor
mation that is necessary to establish his innocence.
Only if the Court concludes that it is necessary to
examine a document should the Court proceed to
make such examination to weigh the competing
interests and to determine whether the public in
terest in non-disclosure has been outweighed.
3. The applicants have failed to demonstrate that
the Court should examine any of the documents in
that:
(a) in seeking production of some 8,200 pages of
documents, they have failed to establish that
any of the documents probably contains specific
information necessary to establish innocence;
(b) they have failed to advance even a prima
facie case that there is information contained in
any of the documents that is necessary to estab
lish innocence; and
(c) they have failed to show that they are unable
to advance the issues they wish to put before the
trial court.
4. The applicants do not need the documents.
Their defence that they did not act fraudulently or
without colour of right can be established by their
personal testimony without any documents, that in
order to use documents to support such a defence
it must be demonstrated that they had read the
documents and that they were the basis for their
belief in the lawfulness of their actions, that if the
documents had not been read by the applicants
they cannot be necessary or even relevant to the
defence and that the applicants have not shown
either that they had read the documents or that
the documents constituted the basis of a genuine
belief that they may have had in the lawfulness
and morality of the operation.
5. The evidence given by the applicants before the
McDonald Commission demonstrates that any
belief the applicants may have had as to the
lawfulness and morality of Operation Ham was
founded, not on the contents of any of the docu
ments in question but on directives that they
received from superiors to carry out the operation
and their belief that they would never be required
by their superiors to participate in unlawful or
immoral activities. The existence of such directives
is not in dispute and are contained in Appendices 4
and 5.
On these bases the respondent submitted that:
(a) the applicants have failed to demonstrate
that the Court should examine any documents;
and
(b) in any event they have failed to demonstrate
that the public interest in disclosure outweighs
in importance the public interest in the preserva
tion from injury of national security and inter
national relations.
Importance of Public Interest in National Secu
rity and International Relations
Turning first to the importance of the public
interest in national security and international rela
tions, I was not referred to nor have I found in the
material before me anything which would afford
any reason to doubt or to discount the opinion
expressed by the respondent in the certificate that
disclosure of what is sought would be injurious to
national security or international relations or
which would challenge or rebut what is contained
in the respondent's secret affidavit. I must con
clude, therefore, that to disclose the information
sought would be injurious to national security and
international relations in the ways set out in the
certificate and affidavit. I must note, however,
without wishing to be critical, that a certificate
which identifies, as this one does, the information
to the disclosure of which objection is taken, by
reference to the information in a multitude of
documents, some of which are in themselves
voluminous, which has not already been made
public by the report of the McDonald Commission,
leaves this Court as well as the Superior Court
with the task of discerning the subject-matter of
the objection by reference to a vague formula
rather than by an intelligible description by which
particular items can be identified. In addition,
there is little if anything in the certificate or the
secret affidavit or elsewhere in the material to
afford a basis for estimating or assessing the gravi
ty of the danger or the injury that might result
from disclosure of any particular information.
What impresses me, as much as anything else in
the material, as indicating the gravity of the risk to
national security and international relations is the
large volume and comprehensiveness of the ma
terial demanded, the disclosure of which, as it
seems to me, could but lay bare to the world the
whole structure of the Security Service with its
strengths and its shortcomings, its methods and
techniques, its resources, its policies and its tar-
gets, and its relationship with friendly foreign
security agencies as well.
In national security matters and international
relations, secrecy is essential. The price in time
and effort put forth to assemble and sift informa
tion is high. The process is continuous. It is carried
out in the interests of public safety. What is
purchased by the efforts expended is easily injured
or lost by publication of information that should be
kept secret.
Further, though the information to which this
application applies is all at least ten years old, I do
not think that its disclosure can on that account be
regarded as any the less likely to cause injury. As
was pointed out in at least one of the cases referred
to, secrets relating to national security may require
to be preserved indefinitely. See Attorney-General
v. Jonathan Cape Ltd. and Others's. I should think
that the same would apply to secrets relating to
international relations. The view expressed by
Gibbs A.C.J. in Sankey v. Whitlam 19 is to that
effect. In neither instance is a period of ten to
twenty years of much significance in reducing the
likelihood of injury resulting from disclosure.
Finally, I regard it as a circumstance to be taken
into account that Canada is not presently at war.
If a state of war existed I doubt that anyone would
argue that the importance of the public interest in
national security was not greater than the impor
tance of the public interest in the administration of
justice for in a war situation the lives of all citizens
may be in jeopardy. That the country is not at war
militates somewhat in favour of the applicants but,
in the present day state of international affairs,
political terrorism and subversion, not much. Eter
nal vigilance is as necessary as it always has been
to maintain the security of the nation.
Importance of Public Interest in Disclosure
Now, what of the importance of the competing
public interest, that of the proper administration of
justice, that justice may not miscarry. Counsel
properly emphasized that the case for which the
documents are required is a prosecution for alleged
criminal offences and that the purpose for which
' a [1976] 1 Q.B. 752, at p. 770.
18 (1978), 21 ALR 505 (H.C.), at p. 528.
the documents and information are required is that
of defending the applicants against the charges.
That, undoubtedly, is an important consideration
to be taken into account, important because con
viction alone would be a serious matter for the
applicants, important as well because the punish
ment might be imprisonment for a not inconsider
able term. But the offences charged are not capital
and, without speculating as to what punishment
would be likely to follow conviction, it does not
appear to me that, in the circumstances as to what
the applicants were engaged in doing in the
"Ham" operation, one ought to give the prospect
of severe punishment undue weight in the scale.
Another circumstance which it seems to me to
be proper to take into account is the relevancy of
the information and documents sought to the
issues that are likely to arise at the trial. I do not
think it is feasible at this stage to isolate particular
issues and to consider the relevancy of the docu
ments or information to them. Nor do I think that
the usefulness to the defence of such documents
and information can be confined to documents
which the applicants had read and information of
which they had knowledge at the material time. I
shall therefore assume that, if tendered, the docu
ments and information sought would be admitted
in evidence and would be relevant to one or
another of the issues. Nevertheless, I have the
impression that some, perhaps many, of the docu
ments may have next to no relevance at all. I also
have the impression that the relevance of most if
not all of them is unlikely to be anything but
peripheral, at the outer limits of admissibility, and
useful, if at all, only as confirming by their mere
existence such direct evidence as there may be on a
particular issue. From their descriptions I do not
perceive that any of the items is by itself evidence
of a fact to be proved to establish the defences
indicated by the applicants in their memorandum
of points to be argued.
In their affidavits the applicants express their
belief that the documents and information in them
are essential to their defences. That is understand
able. Their careers and liberty are in jeopardy. I
do not discredit that they hold such beliefs. But the
belief of the applicant Albert is based not on
personal knowledge but on information given to
him by his counsel as to the need for the docu
ments and information. And the affidavit of the
applicant Goguen includes the expressions "are
very likely to contain" and "I might be deprived of
the means of proper presentation of my case."
After giving the matter the best consideration I
can give it, I am unable to regard the disclosure of
the documents and information as being of critical
importance to the defences of the applicants, par
ticularly having regard to the availability to them
of witnesses who will be able to give in general
terms evidence of at least some of the matters that
they express their need to prove to confirm their
own evidence.
Relative Importance of the Conflicting Public
Interests
On the whole of the material before me I am of
the opinion that in the circumstances of this case
not only is the importance of the public interest in
national security and international relations not
outweighed by the importance of the public inter
est in the proper administration of justice but that
the evidence preponderates heavily in favour of the
importance of the former as outweighing the
importance of the latter. In such circumstances, it
is, in my view, unnecessary that I should call for or
examine any of the documents or information in
question and undesirable that I should do so both
because the authority to examine should only be
exercised when necessary and because in all the
circumstances I do not see any reason to suppose
that an examination of the documents would indi
cate that the documents or information therein
should be disclosed or that such an examination
would otherwise serve any useful purpose.
In the course of argument, counsel for the appli
cants stressed their rights under the common law,
the Criminal Code of Canada, the Canadian Bill
of Rights, S.C. 1960, c. 44 [R.S.C. 1970, Appen
dix III], and the Canadian Charter of Rights and
Freedoms, being Part I of the Constitution Act,
1982, Schedule B, Canada Act 1982, 1982, c. 11
(U.K.), to make full answer and defence. Such
rights are not open to challenge. But they are not
in issue here. What subsection 36.1(2) calls for is a
determination of which of two conflicting public
interests outweighs the other in importance.
Whether the effect of such a determination when
made is to interfere in any way with the right to
make full answer and defence is, as it seems to me,
a matter for the Court which tries the accused. It
is not to be decided on this application nor is the
possible effect on the accused's right of the deter
mination that is to be made here something to be
taken into account in making the determination.
I am accordingly of the opinion that in the
circumstances of this case as disclosed by the
material before me the importance of the public
interest in maintaining the documents and infor
mation in them immune from disclosure on the
grounds that their disclosure would be injurious to
national security and international relations is not
outweighed in importance by the public interest in
disclosure and I so determine. It follows that the
objections taken in the certificate should be upheld
and that this application fails and should be
dismissed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.