T-2696-80
Smith, Kline & French Laboratories Limited,
Smith, Kline & French Canada Ltd., Graham
John Durant, John Colin Emmett and Charon
Robin Ganellin (Plaintiffs)
v.
Attorney General of Canada (Defendant)
Trial Division, Strayer J.—Ottawa, October 6 and
28, 1983.
Practice — Discovery — Production of documents — Crown
privilege — Plaintiffs seeking declaration of right to benefits
of patents free and clear of compulsory licence — Whether s.
41(4), Patent Act inoperative as ultra vires Parliament and
contravening Charter — Upon discovery, asking Crown repre
sentative for documents as to purpose of amendments to Act
— Answer refused — Federal Court ordering questions
answered — Attorney General obtaining certificate from Clerk
of Privy Council under Canada Evidence Act, s. 36.3(1) that
documents contain confidences of Privy Council — Documents
described in general terms — Motion to "strike out" certifi
cate — Court lacking power to do so — Declaration unavail
able upon motion — Whether certificate adequately justifies
non-production — Cases dealing with Crown privilege
reviewed — Situation governed by 1982 amendments to
Canada Evidence Act — Objections on grounds of injury to
international relations or defence now subject to judicial
review — S. 36.3 of Canada Evidence Act providing partial
definition of Queen's Privy Council confidences — Whether
criteria in s. 36.3 merely for guidance of Clerk of Privy
Council or also for that of Court in determining if Clerk's
certificate bringing information within s. 36.3 and therefore
immune from discovery — Parliament's intention in amending
Canada Evidence Act to narrow executive's unfettered discre
tion to withhold otherwise relevant documents — Court not
satisfied certificate asserting privilege within limitations —
Certificate failing to assert documents meeting requirements in
s. 36.3(2) — Proper invocation of para. (d) would assert
subject-matter relating to government decisions or policy for
mulation — To rely on para. (e) certificate should assert
Ministerial briefing in relation to matters referred to in para.
— Para. (f) properly invoked — Certificate should refer to
non-applicability of conditions in s. 36.3(4) — Courts entitled
to assurance Clerk of Privy Council having directed mind to
criteria and limitations imposed on executive by Parliament —
Documents to be produced unless certificate in form required
by s. 36.3 filed within 30 days — 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(1),(2),(4), as rep. by S.C. 1980-81-82-83, c. 111, s.
3 — Patent Act, R.S.C. 1970, c. P-4, s. 41(4).
Interlocutory motion 'n an action whereby plaintiffs seek
declarations that they have the right to the benefits of certain
patents free and clear of compulsory licence under subsection
41(4) of the Patent Act. Motion formulated as request to
"strike out" certificatc of the Clerk of the Privy Council issued
pursuant to subsection 36.3(1) of the Canada Evidence Act.
Certificate claimed that documents listed were confidences of
the Queen's Privy Council and that the Clerk objected to the
disclosure of such documents. The documents were described in
general terms and with respect to each there is a bald assertion
that the document comes within a specific paragraph of the
definition of confidence in subsection 36.3(2). Addy J. had
previously ordered reattendance of the Crown's representative
at examination for discovery to answer certain questions. First
issue is whether criteria and limitations in section 36.3 are
simply directions to the Clerk of the Privy Council for his
guidance in deciding whether or not to issue certificate, or
whether they are also for the guidance of a court in determin
ing, where discovery would otherwise be necessary, if a certifi
cate of the Clerk has properly brought information within
protection of section 36.3 and therefore made it immune from
discovery. Second issue is whether the certificate conforms to
section 36.3. Plaintiffs contend that certificate defective on its
face as it fails to comply with criteria and limitations in section
36.3. Defendant contends that Clerk need not recite all of the
language of the Act to show that the document meets all
requirements; that it is sufficient if the Clerk certifies that he
has examined the documents and is satisfied that they come
within one or more of the definitions of "confidence". Accord
ingly, reference to particular paragraphs of subsection 36.3(2)
shows that he had the statute in mind and concluded that these
documents met those requirements. It was further argued that
it is unnecessary to specify that the documents were not within
the exceptions to privilege set out in subsection 36.3(4).
Defendant submits that unless it can be shown by material
properly before the Court that the documents cannot fit the
description of the Act, the certificate is conclusive.
Held, defendant ordered to produce documents required in
response to certain questions, unless proper certificate filed
within 30 days. Present motion to "strike out" certificate as
void outside authority of Court. The function of the Clerk in
issuing such certificate is not subject to review by prerogative
writs. While declaration might be the appropriate means for
judicial examination of such certificate, that relief was unavail
able in the present proceedings. However, since Addy J. had
previously ordered the Crown to respond to questions, which
require production of documents for which the Crown claimed
privilege by filing the certificate in question, the discovery
process of the Court was involved. Non-production of the
documents in question must therefore be justified to the Court.
Section 36.3 relates only to objections to disclosing information
that is a "confidence of the Queen's Privy Council for Canada".
Unlike new sections 36.1 and 36.2 of the Canada Evidence Act
which preserve and extend the balancing of interests approach
favoured in Conway v. Rimmer and Another, [1968] A.C. 910
(H.L.) and formerly prescribed in subsection 41(1) of Federal
Court Act, section 36.3 preserves with respect to a particular
class of documents, that is, "confidence[s] of the Queen's Privy
Council for Canada", the restrictive approach taken in Duncan
and Another v. Cammell, Laird and Company, Limited, [1942]
A.C. 624 (H.L.) and codified for many federal documents by
subsection 41(2) of the Federal Court Act. The difference
between section 36.3 and subsection 41(2) is that there was no
definition of "confidence" in subsection 41(2) whereas there is
a partial definition in subsections 36.3(2) and (3). Also, the
rule preventing disclosure in subsection (1) is limited by subsec
tion (4) which prohibits refusal to disclose depending on the
age of the confidence or whether its substance has been
announced. Where there is a proper certificate by the Clerk,
the Court cannot go behind the certificate and examine the
documents as it may under sections 36.1 and 36.2. The domi
nant common law view is that the courts should have a role, in
appropriate cases, in balancing respective public interests.
Although Parliament has not given Canadian courts an equally
wide role, it must be assumed to have been aware of the
common law developments in its most recent legislation. Parlia
ment intended to narrow substantially the unfettered discretion
of the executive to withhold information and documents which
would otherwise be relevant to a matter before the courts.
Subsection 36.3(4) also fetters executive discretion. Since the
purpose of these amendments to the Canada Evidence Act was
to limit executive claims for privilege, it is open to the courts to
see whether a certificate on its face asserts a privilege within
these limitations. This certificate does not do so. A certificate
should clearly assert that the document meets the requirements
spelled out in the paragraphs of subsection 36.3(2). This certifi
cate is also defective because it contains no reference to subsec
tion 36.3(4). While it is unnecessary with respect to each
document to assert that it does not come within subsection (4),
it is appropriate to add a general statement as to non-applica
bility of subsection 36.3(4). Litigants and the courts are en
titled to know that the Clerk has directed his mind to the
criteria and limitations imposed by Parliament. In the context
of paragraphs (d) and (e) of subsection 36.3(2), the term
"record" is used as a generic term to describe various forms of
communications or materials which relate or reflect expressions
of opinion, information concerning Cabinet business. A letter
may therefore form all or part of a "record". "Draft legisla
tion" in paragraph (/) includes draft regulations.
CASES JUDICIALLY CONSIDERED
FOLLOWED:
The Attorney General of the Province of Quebec v.
Blaikie, et al., [1981] 1 S.C.R. 312.
CONSIDERED:
Duncan and Another v. Cammell, Laird and Company,
Limited, [1942] A.C. 624 (H.L.); Conway v. Rimmer
and Another, [1968] A.C. 910 (H.L.); A.G. v. Jonathan
Cape Ltd et al., [1975] 3 All E.R. 484 (Q.B.D.).
REFERRED TO:
Landreville v. The Queen, [ 1977] 1 F.C. 419 (T.D.); Le
procureur général du Canada et autre c. Commission des
droits de la personne, [1977] C.S. 47; (sub nom. Human
Rights Commission v. A.G. of Canada), 134 D.L.R. (3d)
17 (S.C.C.); Carey v. The Queen in right of Ontario et al.
(1983), 39 O.R. (2d) 273 (C.A.); United States v. Nixon,
President of the United States, et al., 418 U.S. 683 (Sup.
Ct. 1974); Sankey v. Whitlam et al. (1978), 142 C.L.R. 1
(H.C. Aust.); Gloucester Properties Ltd. et al. v. The
Queen in right of British Columbia et al. (1981), 129
D.L.R. (3d) 275 (B.C. C.A.); Smallwood v. Sparling,
[1982] 2 S.C.R. 686; 44 N.R. 571; Goguen et al. v.
Gibson, [1983] 1 F.C. 872.
COUNSEL:
R. G. McClenahan, Q.C. and R. A. Mac-
Donald for plaintiffs.
D. H. Aylen, Q.C. and J. P. Lordon for
defendant.
SOLICITORS:
Gowling & Henderson, Ottawa, for plaintiffs.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for order ren
dered in English by
STRAYER J.: This is an interlocutory motion in
an action in which the plaintiffs seek various
declarations that they have the right to the ben
efits of certain patents "free and clear of any
compulsory licence under section 41(4) of the
Patent Act...." Subsection 41(4) of the Patent
Act, R.S.C. 1970, c. P-4, provides for compulsory
licensing of patents for medicine and for processes
for the preparation or production of medicine.
Plaintiffs in their amended statement of claim
state that subsection 41(4) of the Patent Act is
inoperative because contrary to the provisions of
the Canadian Bill of Rights, S.C. 1960, c. 44
[R.S.C. 1970, Appendix III], is null and void
because contrary to the Canadian Charter of
Rights and Freedoms, being Part I of the Consti
tution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.), and is ultra vires the Parlia
ment of Canada.
In the course of their examination for discovery
of Mr. Gariepy, the representative of the Crown
for this purpose, they asked certain questions
(numbers 289, 291 and 374) which were really
requests that the Crown produce all background
documents relating to the purpose for which the
amendment was made to the Patent Act incor
porating subsection 41(4) therein. (This subsection
was added to the Patent Act by S.C. 1968-69, c.
49, s. 1.) Mr. Gariepy refused to answer certain
questions and an application was made to this
Court for an order requiring that he reattend for
examination for discovery to answer a number of
questions. On July 6, 1982 Addy J. made such an
order with respect to several questions including
questions 289, 291 and 374 as referred to above
[Federal Court, T-2696-80, judgment dated July
6, 1982].
Since that time there has been a good deal of
correspondence between counsel with respect to
the documents which would be relevant in response
to these questions. Counsel for the Attorney Gen
eral produced numerous documents but asserted a
privilege against disclosure with respect to some
others. When the plaintiffs pressed for disclosure
of these other documents counsel for the Attorney
General obtained a certificate from the Clerk of
the Privy Council, purportedly issued pursuant to
subsection 36.3(1) 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. This certificate is to the effect
that the documents listed in its Schedule "contain
information constituting confidences of the
Queen's Privy Council for Canada" and that the
Clerk objects to the disclosure of the documents
and the information contained therein. This certifi
cate was dated September 15, 1983. In its
Schedule it lists 70 documents by number. The
documents are not identified but only described in
very general terms and with respect to each there
is an assertion that the document comes within one
or more paragraphs of subsection 36.3(2) of the
Canada Evidence Act.
In the present motion the plaintiffs request this
Court to "strike out" the certificate of the Clerk of
the Privy Council on the following grounds:
(a) the Certificate is void in that on its face the documents
listed therein by the Clerk of the Privy Council do not fall
within Section 36.3(2) of the Canada Evidence Act;
(b) the Certificate is void in that it is insufficient in its
description of the documents allegedly described therein;
(c) the Certificate is void in that it does not describe the
documents in sufficient particularity to enable this Court to
determine if the documents fall within Section 36.3(2) or
Section 36.3(4) of the Canada Evidence Act;
(d) the Certificate is void in that the Clerk of the Privy
Council has claimed privilege for documents which are not in
fact privileged.
The plaintiffs also seek an order requiring the
defendant to produce the documents listed in the
certificate.
It should first be noted that this is a request for
"striking out" the certificate. I do not believe that
this Court has authority to "strike out" such a
certificate. Even if he were properly impleaded, I
do not think that the function of the Clerk in
issuing such a certificate is of such a nature as to
be amenable to review by any of the prerogative
writs. While a declaration might be an appropriate
means for a judicial examination of the certificate,
the present proceedings are not in the appropriate
form for a declaration. Counsel for the plaintiffs
was unable to refer me to any specific authority
otherwise by which the Court could strike out the
certificate.
That, however, is not the end of the matter.
What is involved here is the discovery process
employed in this Court. My brother Addy has
already made an order requiring the Crown to
respond to, inter alia, questions 289, 291 and 374
and on their face these questions require, by way
of response, the production of Government docu
ments relevant to the background of this amend
ment to the Patent Act. The Crown has, by filing
the certificate of the Clerk of the Privy Council,
admitted that there are 70 such documents in its
possession. These documents have not been pro
duced. This non-production must be justified to
the Court and this the Crown says it has done by
providing the certificate of the Clerk of the Privy
Council. It is therefore my responsibility to see
whether the certificate adequately justifies the
non-production of the documents and to do this I
must see if it conforms to the statutory provision
authorizing the non-production, namely section
36.3 of the Canada Evidence Act which the Crown
invokes.
It is not necessary to repeat at length the history
of developments during the last few decades with
respect to the privilege (or, if one prefers, immuni
ty) of the Crown with respect to disclosure of
documents in civil litigation. This history has been
fully reviewed elsewhere: see, for example, Lan-
dreville v. The Queen, [1977] 1 F.C. 419 (T.D.) at
pages 421-422; Le procureur général du Canada et
autre c. Commission des droits de la personne,
[ 1977] C.S. 47-66; (sub nom. Human Rights
Commission v. A.G. of Canada), 134 D.L.R. (3d)
17 (S.C.C.) at pages 24-26; Carey v. The Queen in
right of Ontario et al. (1983), 39 O.R. (2d) 273
(C.A.).
A very generous view of Crown privilege was
taken by the House of Lords in Duncan and
Another v. Cammell, Laird and Company, Lim
ited, [1942] A.C. 624 (H.L.) where it was held
that for all practical purposes the affidavit of a
Minister stating that disclosure of documents
would be injurious to the public interest would be
accepted by the courts without examination of the
documents themselves. This approach was
attenuated greatly in some other common law
jurisdictions and in the United Kingdom itself in
the later House of Lords decision in Conway v.
Rimmer and Another, [1968] A.C. 910 (H.L.)
where it was held that in the face of a Ministerial
claim that the disclosure of documents would be
injurious to the public interest the courts can
examine the documents in order to balance the
public interest in non-disclosure against the public
interest in the administration of justice for which
disclosure is sought. It was said that while due
deference should be shown to a Ministerial opin
ion, particularly in areas where the Minister is in a
better position to judge the potential harm, the
court should make the final decision. Perhaps
more germane to the present case was the later
decision of the English Queen's Bench Division in
A.G. v. Jonathan Cape Ltd et al., [1975] 3 All
E.R. 484 (Q.B.D.) where an injunction to halt the
publication of Cabinet documents nearly ten years
old was refused. In that case the Judge read some
of the material before reaching the conclusion that
it could be released.
In other common law jurisdictions, including
some Canadian provinces, the trend has similarly
been in the direction of the courts being prepared
to examine material of the nature of Cabinet
confidences, if necessary, and to balance the public
interest in non-disclosure against the public inter
est in facilitating the administration of justice.
See, for example, United States v. Nixon, Presi
dent of the United States, et al., 418 U.S. 683
(Sup. Ct. 1974); Sankey v. Whitlam et al. (1978),
142 C.L.R. 1 (H.C. Aust.); Gloucester Properties
Ltd. et al. v. The Queen in right of British
Columbia et al. (1981), 129 D.L.R. (3d) 275
(B.C. C.A.); Smallwood v. Sparling, [1982] 2
S.C.R. 686; 44 N.R. 571; and Carey v. The Queen
in right of Ontario et al. (supra).
Shortly after Conway v. Rimmer and Another,
the Parliament of Canada enacted the Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, which
came into force in 1971. Section 41 of that Act
dealt with the scope of, and the procedure for
claiming, Crown privilege with respect to docu
ments of the Crown in right of Canada. Subsection
41(1) appeared to follow the Conway v. Rimmer
and Another approach: generally, where a Minis
ter of the Crown certified by affidavit that a
document should be withheld from disclosure on
the basis of a stated public interest, it allowed the
court in question to examine the document and
perform the necessary balancing of interests to see
whether the document should be disclosed. Subsec-
tion 41(2) however followed the Cammell, Laird
approach and it applied to a large and somewhat
amorphous group of documents. That subsection
provided that wherever a Minister by affidavit
claimed that the production or discovery of a
document would be injurious to international rela
tions, national defence or security, or to federal-
provincial relations, or that it would disclose a
confidence of the Queen's Privy Council for
Canada, then discovery or production "shall be
refused without any examination of the document
by the court". In other words, all that was required
was an affidavit that the document came within
one of these categories and the Court was preclud
ed from examination of the document. As
Mahoney J. said of this subsection in Landreville
v. The Queen (supra) at page 422:
That codification precludes the evolution in Canada of a Crown
privilege where the final decision on production in litigation of
relevant documents rests with an independent judiciary rather
that an interested executive, recognizing that the conflict, in
such circumstances, is not between the public interest and a
private interest but between two public interests.
This subsection continued to be contentious, and
Parliament repealed the whole of section 41 when
it amended the Canada Evidence Act in 1982 by
the addition of sections 36.1, 36.2, and 36.3. Sec
tion 36.1, dealing with claims for Crown privilege
with respect to "information", somewhat parallels
the former subsection 41(1) of the Federal Court
Act. It provides special procedures for a superior
court or the Federal Court—Trial Division exam
ining the information and performing a balancing
function. Section 36.2 covers much of the area
formally covered by subsection 41(2) of the Fed
eral Court Act because it deals with objections to
the disclosure of information on grounds that the
disclosure would be injurious to international rela
tions or national defence or security. Where such
an objection is taken the objection may be deter
mined by the Chief Justice of the Federal Court or
another judge of that Court designated by him. He
can apparently consider the nature of the objection
and the nature of the information and decide
whether the objection is well founded. See Goguen
et al. v. Gibson, supra, page 872. In this respect,
then, objections taken on grounds of injury to
international relations or national defence or secu-
rity are subject to some judicial review whereas
under the previous provisions of subsection 41(2)
of the Federal Court Act they were not.
Section 36.3 relates only to objections to the
disclosure of information on the ground that it is a
"confidence of the Queen's Privy Council for
Canada". This section reads as follows:
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.
(2) For the purpose of subsection (1), "a confidence of the
Queen's Privy Council for Canada" includes, without restrict
ing the generality thereof, information contained in
(a) a memorandum the purpose of which is to present
proposals or recommendations to Council;
(b) a discussion paper the purpose of which is to present
background explanations, analyses of problems or policy
options to Council for consideration by Council in making
decisions;
(c) an agendum of Council or a record recording delibera
tions or decisions of Council;
(d) a record used for or reflecting communications or discus
sions between Ministers of the Crown on matters relating to
the making of government decisions or the formulation of
government policy;
(e) a record the purpose of which is to brief Ministers of the
Crown in relation to matters that are brought before, or are
proposed to be brought before, Council or that are the
subject of communications or discussions referred to in para
graph (d); and
(f) draft legislation.
(3) For the purposes of subsection (2), "Council" means the
Queen's Privy Council for Canada, committees of the Queen's
Privy Council for Canada, Cabinet and committees of Cabinet.
(4) Subsection (1) does not apply in respect of
(a) a confidence of the Queen's Privy Council for Canada
that has been in existence for more than twenty years; or
(b) a discussion paper described in paragraph (2)(b)
(i) if the decisions to which the discussion paper relates
have been made public, or
(ii) where the decisions have not been made public, if four
years have passed since the decisions were made.
Without going into a detailed comparison of the
amendments to the Canada Evidence Act and the
former section 41 of the Federal Court Act, it may
be noted that generally the new sections 36.1 and
36.2 of the Canada Evidence Act preserve, and
extend, the application of the "balancing"
approach favoured in Conway v. Rimmer and
Another and prescribed in subsection 41(1) of the
Federal Court Act. Section 36.3 of the Canada
Evidence Act, however, largely preserves with
respect to a particular class of documents, "confi-
dence[s] of the Queen's Privy Council for Cana-
da", the restrictive approach taken in the Cam-
mell, Laird case and codified for many federal
documents in Canada by subsection 41(2) of the
Federal Court Act. But it is important to note that
subsection 41(2) of the Federal Court Act simply
provided that where a Minister certified by affida
vit that production or discovery of a document
"would disclose a confidence of the Queen's Privy
Council for Canada" (there being no definition of
such "confidence") then the Court was obliged to
refuse discovery or production without any exami
nation of the document. In section 36.3 of the
Canada Evidence Act, however, there is a partial
definition of such confidences in subsection (2)
and subsection (3) and the application of the rule
in subsection (1) preventing disclosure is limited
by subsection (4). Subsection (4) says in effect
that disclosure is not to be refused for confidences
in existence for more than 20 years or for discus
sion papers which have led to decisions which have
been made public or, where the decisions have not
been made public, if 4 years have passed since
those decisions were made.
It seems to me that the essential question for
decision is whether these criteria and limitations
with respect to non-disclosure of Cabinet confi
dences are to be viewed simply as directions to the
Clerk of the Privy Council for his guidance in
deciding whether or not to issue a certificate, as
counsel for the Attorney General of Canada in
effect argues, or whether in addition these criteria
and limitations are also for the guidance of a court
in determining, in a case where discovery would
otherwise be necessary, if a certificate of the Clerk
of the Privy Council has properly brought the
information within the protection of section 36.3
and therefore made it immune from discovery in
the proceedings before that court.
In seeking to have the certificate treated as a
nullity, counsel for the plaintiffs (applicants) is
obviously arguing for the latter interpretation, so
that the Court can look at the form of the certifi
cate and test it against the criteria and limitations
in section 36.3. Counsel asserted that the certifi
cate was defective in this respect for several rea
sons. Paragraph 3 of the certificate says "that for
the reasons set out in the Schedule attached hereto
all of the documents referred to in the Schedule
. contain information constituting confidences of
the Queen's Privy Council for Canada." The
Schedule then lists 70 documents without giving
particulars as to dates, titles, authors, addressees,
etc. Typical is the first entry:
1. Document #1 is a copy of a memorandum the purpose of
which is to brief a Minister of the Crown and therefore is
within paragraph 36.3(2)(e) of the Canada Evidence Act.
Counsel for the plaintiffs (applicants) argues that
the certificate refers to the Schedule to provide the
reasons for the claim that the document consti
tutes a confidence of the Queen's Privy Council,
and that an assertion such as that in item number
1 does not properly invoke the privilege prescribed
in section 36.3. He argues, with respect to items
such as this, that the category of confidence
defined in paragraph 36.3(2)(e) by the very terms
of the statute is confined to briefing material for
Ministers "in relation to matters that are brought
before, or are proposed to be brought before,
Council" or are a record of communications or
discussions referred to in paragraph (d) "on mat
ters relating to the making of government deci
sions or the formulation of government policy". A
description such as that in item 1 does not specify
the purpose of the briefing. It is argued that a
memorandum could be written to brief a Minister
on all manner of things having nothing to do with
matters coming before Cabinet or the making of
government decisions or the formulation of govern
ment policy.
Another example of the applicants' objection to
the certificate is one based on item 3 of the
certificate which reads as follows:
3. Document #3 is a copy of a memorandum to Council and
therefore is within paragraph 36.3(2)(a) of the Canada Evi
dence Act.
Counsel points out that the scope of a "confi-
dence" in paragraph (a) as invoked here is con
fined to "a memorandum the purpose of which is
to present proposals or recommendations to Coun
cil". In item 3 the Clerk of the Privy Council
contented himself with merely asserting that this is
a copy of a "memorandum to Council and there
fore" is entitled to the privilege. There is no asser
tion that the memorandum was for the purpose of
presenting proposals or recommendations to Coun
cil. I think it is unnecessary to detail at this point
other objections taken to the certificate.
Counsel for the Attorney General of Canada
argues, in effect, that it is not necessary for the
Clerk of the Privy Council to recite all the lan
guage of the Act to show that the document meets
all of its requirements. It is sufficient if the Clerk
certifies that he has examined the documents and
that he is satisfied that they come within one or
more of the definitions of a "confidence". The
Clerk by referring to particular paragraphs of
subsection 36.3(2) shows that he has had the
requirements of the statute in mind and must be
taken to have concluded that the documents meet
those requirements. Similarly, it is not necessary
for him to specify that the documents do not come
within the exceptions to the privilege as set out in
subsection 36.3(4). Counsel says that unless it can
be shown, on material properly before the Court,
that the documents cannot fit the description of
the Act, the certificate is conclusive. In the
absence of such material we must, he says, accept
the opinion of the Clerk of the Privy Council as
conclusive.
It is clear from subsection 36.3(1) that where
there is a proper certificate by the Clerk of the
Privy Council objecting to the disclosure of infor
mation before the Court, the Court cannot go
behind the certificate and examine the documents
as it may under sections 36.1 and 36.2 of the
Canada Evidence Act. As noted earlier, this kind
of exclusion of the courts in favour of the executive
in the determination of whether certain documents
or information should be disclosed is not without
precedent. The history of Crown privilege also
indicates, however, that the dominant common law
view which has developed is that the courts should
have a role, in appropriate cases, in balancing the
respective public interests. While the Parliament
of Canada has not permitted an equally wide role
for Canadian courts with respect to federal govern
ment documents and information, it must be
assumed to have been aware of these common law
developments in its most recent legislation. This
suggests that Parliament in the amendments to the
Canada Evidence Act intended to narrow substan
tially the unfettered discretion of the executive to
withhold information and documents which would
otherwise be relevant to a matter before the courts.
It is surely for this reason that Parliament, for the
first time for these purposes, sought to provide at
least a partial definition of what is a Cabinet
confidence. While subsection 36.3(2) does not pur
port to be an exhaustive definition, it is hard to
imagine that materials which are implicitly but
clearly excepted from the listed categories of docu
ments could be regarded as still within the general
term "confidence of the Queen's Privy Council".
In the present case, in fact, the Clerk of the Privy
Council has with respect to each of the 70 docu
ments invoked one of the specific definitions in the
various paragraphs of subsection 36.3(2) and is
not asserting that any of them come within some
residual scope of the general category of "a confi
dence of the Queen's Privy Council for Canada".
It appears that Parliament has also moved in the
direction of fettering executive discretion by sub
section 36.3(4) which says, in effect, that even
though some information may fit within the defini
tion of a Cabinet confidence it nevertheless is not
entitled to the privilege and cannot be the subject
of a certificate of the Clerk of the Privy Council.
This is another significant departure from subsec-
tion 41(2) of the Federal Court Act which allowed
an unfettered discretion for the executive to make
a non-reviewable claim for privilege with respect
to any confidence of the Queen's Privy Council for
Canada regardless of how old it might be or
whether its substance had long since been
announced.
It appears to me then that the purpose of these
amendments was, at least in part, to impose limita
tions on claims for privilege by the executive.
These limitations being imposed expressly by law,
it is surely open to a court to see whether the
certificate on its face asserts a privilege within
these limitations.
I am not satisfied that this certificate does so.
Where it asserts that a document is a confidence
on the basis of the definitions in the various para
graphs of subsection 36.3(2) it should clearly
assert that the document meets the requirements
spelled out in those paragraphs. For example,
where it invokes paragraph (a) it should indicate
that the memorandum to Council was for the
purpose of presenting proposals or recommenda
tions. Paragraph (b) is not resorted to, and where
(c) is invoked this appears to be done properly.
Paragraph (d) in my view is not properly invoked.
Typical of its use is item 22 which reads as follows:
22. Document #22 is a copy of a letter between Ministers of the
Crown and therefore is within paragraph 36.3(2)(d) of the
Canada Evidence Act.
In the statute paragraph (d) is carefully circum
scribed to cover only "communications or discus
sions between Ministers of the Crown on matters
relating to the making of government decisions or
the formulation of government policy". It does not
cover communications concerning social events,
personal business, etc. The certificate simply
asserts that the document in question is a letter
passing between Ministers and this might or might
not describe a document to which the privilege can
legally attach. Therefore a proper invocation of
paragraph (d) should assert that the subject-
matter relates to the making of government deci
sions or the formulation of government policy.
Similarly paragraph (e) is not properly invoked
by a formulation such as was used to describe
document number 1 (see supra). To rely on para
graph (e) the certificate should assert that the
Ministerial briefing was in relation to matters
referred to in that paragraph.
I believe that paragraph (f) has been properly
invoked. It is used in item 11 which states:
I 1. Item #I1 is the legislative drafting file #213000-52 which
contains various drafts of proposed amendments, and related
instructions thereto and notes of discussions thereof and there
fore is within paragraph 36.3(2)(f) of the Canada Evidence
Act.
While counsel for the applicants argued that this
description refers to material other than drafts
which would not come within the meaning of
"draft legislation", it would appear to me that it is
impossible to separate drafting instructions and
notes of discussions on the drafting from the draft
legislation itself. To disclose the associated ma
terial would very probably be to disclose the sub
stance of the draft. The same can be said of the
descriptions of documents 51, 52, and 53. Counsel
for the applicants also took objection to the
description of document 50 which involves "draft
regulations". He took the position that regulations
are not legislation and therefore cannot be "draft
legislation" within the meaning of paragraph (f). I
do not accept this objection. Regulations are a
form of delegated legislation. Clearly the purpose
which is served by a privilege from disclosure of
draft legislation is equally applicable to non-disclo
sure of draft regulations. See The Attorney Gener
al of the Province of Quebec v. Blaikie, et al.,
[1981] 1 S.C.R. 312 at pages 319-321.
I think the certificate is defective in one other
aspect in that it makes no reference to subsection
36.3(4) which creates certain exceptions to the
privilege of non-disclosure of confidences of the
Queen's Privy Council. While I would not think it
necessary, with respect to each document, to assert
a negative to the effect that it did not come within
subsection (4), I think that it would be entirely
appropriate for the Clerk of the Privy Council to
add a general statement asserting that none of the
confidences in question has been in existence for
more than 20 years, thus making paragraph (4)(a)
inapplicable, and also stating either that none of
the documents is a discussion paper (as appears to
be the case here) or that, in situations where
discussion papers are included, that none of them
fall within the description in paragraph (4)(b). In
suggesting this I recognize that in the present case
it is common ground that none of the confidences
in question are older than 20 years, and moreover
that there do not appear to be any discussion
papers involved. However, for reasons which I will
next state, I find it appropriate that the certificate
contain some such reference to the non-applicabili
ty of the conditions laid down in subsection
36.3(4).
The foregoing requirements for a certificate
which I have postulated may appear to some to be
unduly formalistic. As has been argued by the
Crown in the present case, there is no evidence
before me that the documents listed in the certifi
cate do not meet the criteria of the statute even
though they are not adequately described as meet
ing all the requirements. Nevertheless, consistently
with the changes which the Parliament of Canada
has made in the law in order to impose some
criteria and limitations on the executive in its
assertion of privilege by means of a non-reviewable
certificate, litigants and the courts are entitled at
least to the assurance that the Clerk of the Privy
Council has directed his mind to those criteria and
limitations. The certificate in its present form,
because it does not in all respects indicate that the
Clerk has so directed his mind, is defective.
The applicants took one other objection to the
certificate which I think cannot be sustained. They
argued that where the term "record" is used in
paragraphs (d) and (e) of subsection 36.3(2), this
cannot include a letter passing between Ministers,
to or from Ministers, or about Ministerial discus
sions. While one might not in ordinary parlance
refer to a letter as a "record", it appears that in
the context of paragraphs (d) and (e) the term
"record" is used as a generic term to describe
various forms of communications or materials
which relate or reflect expressions of opinion,
information, etc. concerning Cabinet business. In
this sense a letter may form part or all of the
"record".
ORDER
It is hereby ordered that the defendant produce
to the plaintiffs the documents required to be
produced in response to questions 289, 291 and
374 of the examination for discovery of the repre
sentative of the defendant, as required by the order
of Addy J. of July 6, 1982, within 30 days of the
date of this order or such further time as the
parties may agree, unless the defendant before
that time files a certificate in proper form as
required by section 36.3 of the Canada Evidence
Act.
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.