T-2557-86
International Longshoremen's and Warehouse-
men's Union—Canada Area Locals 500, 502, 503,
504, 505, 506, 508, 515 and 519 and Every Person
Ordinarily Employed in Longshoring or Related
Operations at the Port on the West Coast of
Canada and Who is Subject to the Provisions of
the Maintenance of Ports Operations Act, 1986
(Plaintiffs)
v.
The Queen (Defendant)
INDEXED AS: LL.W.U. V. CANADA
Trial Division, McNair J.—Vancouver, April 20;
Ottawa, August 31, 1988.
Constitutional law — Charter of Rights — Limitation
clause — Main action attacking constitutional validity of
Maintenance of Ports Operations Act, 1986 — Defence of
justifiable limitation Plaintiffs requesting information
relating to introduction and passage of Act to ascertain Par
liament's objectives, and demolish defence in advance —
Crown refusing to disclose Cabinet confidences under Canada
Evidence Act, s. 36.3 — Motion to strike statement of defence
dismissed — Analysis of Parliament's objectives involving
consideration of legislation itself, not policy options considered
prior to introduction — Motion premature as necessary to
prove violation of Charter rights before onus shifting to oppo
nent to prove justifiable limitation — Court unwilling to
assume Charter rights violated without trial, nor to try merits
of allegation at this stage — Mere allegation of Charter
violation not limiting procedures available to defendant.
Practice — Privilege — Crown relying on Canada Evidence
Act, s. 36.3 in refusing to disclose Cabinet confidences relating
to circumstances surrounding introduction and passage of
statute — S. 36.3 statutory codification of common law con
stitutional convention in respect of Cabinet confidences
Statutory privilege encompassed in specific legislation within
Parliament's competence — That actions to be tried in accord
ance with laws of evidence part of fundamental justice
Proper certificate conclusive of privilege asserted — Certifi
cate proper within principle in Smith, Kline & French v.
Attorney General of Canada and complies with s. 36.3(1) and
(4).
Practice Discovery Production of documents — Crown
election to invoke executive privilege "reasonable excuse" for
failure to provide documents as required by R. 460(1) —
Canada Evidence Act, s. 36.3 not sustaining privilege against
disclosure of Cabinet confidences in absence of certificate —
R. 448 discovery of classes of documents set out in letter
ordered, without prejudice to defendant's right to claim execu
tive privilege and produce proper certificate.
Judicial review — Equitable remedies — Declarations —
Crown refusing to disclose information and invoking executive
privilege under Canada Evidence Act, s. 36.3 — Plaintiffs
arguing, on motions for interlocutory relief election under s.
36.3 completely frustrating case and therefore breach of fun
damental justice — Constitutional validity of s. 36.3 not to be
determined by declaration, on summary motion, when issue
not raised in pleadings.
This was a motion to strike the statement of defence as
embarrassing or prejudicial to the fair trial of the action or as
an abuse of process, or for failure to produce documents in
accordance with the Rules. In the main action the plaintiff
disputes the constitutional validity of the Maintenance of Ports
Operations Act, 1986. When the plaintiffs' solicitors sought
information concerning the circumstances surrounding the
introduction and passage of that Act the defendant declined to
comply, invoking executive privilege under section 36.3 of the
Canada Evidence Act. Part of the defence was that the
impugned legislation was a justifiable limitation under Charter,
section I. The plaintiffs argued that the defendants will have to
prove that the impugned legislation is rationally connected to
the legislative objective, which in turn demands an explanation
of why, and under what circumstances, the law was enacted.
Consequently, it was submitted that the Crown's election was a
breach of fundamental justice as it concealed the true objec
tives of the legislation behind the section 36.3 certificate and
entirely frustrated the plaintiffs' case. Such concealment was a
deprivation of the plaintiffs' right to liberty under Charter,
section 7. The plaintiffs also argued that the Crown's election
was not a "reasonable excuse" for the failure to produce
documents as required by Rule 460. They also sought Rule 448
general discovery of documents, identified in a letter from the
plaintiffs' solicitors to the defendant's solicitors, which were
additional to the defendant's Rule 447 list. Most of the docu
ments in question appeared to be Cabinet confidences.
Held, the motion should be dismissed, except as to the claim
for Rule 448 discovery which should be allowed subject to
limitations.
Firstly, in a section 1 inquiry, Parliament's objective should
be determined from an analysis of the legislation itself, not of
the whole range of policy options considered by Cabinet in the
course of introducing such legislation.
Secondly, the relief sought by the plaintiffs requires an
assumption that their Charter rights have been infringed. A
court should not make such an assumption on a summary
motion, nor should it try the merits of the Charter argument
prior to trial. The party alleging violation of its Charter rights
still has the onus of proving such violations. Only then does the
onus shift to the opponent to prove justifiable limitation. In any
case, the same procedures are available to the defendant in the
defence of the suit, including election under section 36.3 of the
Canada Evidence Act. The fact that actions must be tried in
accordance with prescribed rules of practice and procedure and
subject to the proper laws of evidence is but part of the
principles of fundamental justice and a safeguard against liti
gious anarchy.
Thirdly, under the Federal Court Rules, declaratory relief
cannot be sought by originating motion, but only by an action.
The plaintiffs cannot challenge the constitutional validity of
section 36.3 on a summary motion without even raising such
issue in their pleadings.
It is well established that a court cannot go behind a
subsection 36.3(1) certificate and examine the documents. The
certificate was a proper one within the context of the principle
enunciated in Smith, Kline & French v. Attorney General of
Canada. It is sufficient to protect the Cabinet confidences
referred to in the discovery questions enumerated therein. It
also constituted a reasonable excuse for not striking the defence
under Rules 460 and 465(20), and operated as a bar to the
plaintiffs' motion to strike under Rule 419(1)(d) and W.
Section 36.3 cannot sustain the privilege against the disclo
sure of confidences contained in Cabinet documents in the
absence of a certificate by the Clerk of the Privy Council
identifying those documents and asserting the particular
grounds of privilege claimed. Rule 448 discovery should, there
fore, be allowed, but limited to production of the classes of
documents enumerated in the plaintiffs' solicitor's letter, and
without prejudice to the defendant's right to object to the
production of any document on the ground of section 36.3
privilege and upon production of a proper certificate.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canada Evidence Act, R.S.C. 1970, c. E-10, s. 36.3 (as
enacted by S.C. 1980-81-82-83, c. I l 1, s. 4, Sch. III).
Canadian Bill of Rights, R.S.C. 1970, Appendix III, s.
2(e).
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), ss. 1, 2(d), 7, 24(1).
Federal Court Rules, C.R.C., c. 663, RR. 302(b),
419(1)(d),(/), 447, 448, 460 (as am. by SOR/79-57, s.
13), 465(I8),(20).
Maintenance of Ports Operations Act, l986, S.C. 1986, c.
46.
CASES JUDICIALLY CONSIDERED
APPLIED:
Smith, Kline & French Laboratories Limited v. Attorney
General of Canada, [1983] 1 F.C. 917 (T.D.).
DISTINGUISHED:
Carey v. Ontario, [1986] 2 S.C.R. 637; 72 N.R. 81.
CONSIDERED:
The Queen v. Oakes, [ 1986] 1 S.C.R. 103.
REFERRED TO:
Wilson v. Minister of Justice, [ 1985] I F.C. 586 (C.A.);
Rothmans of Pall Mall Canada Limited v. Minister of
National Revenue (No. 2), [1976] 2 F.C. 512 (C.A.);
Canada (Auditor General) v. Canada (Minister of
Energy, Mines and Resources), [1987] I F.C. 406
(C.A.); Ouvrage de raffinage de métaux Dominion Ltée
c. Énergie atomique du Canada Ltée, [1988] R.J.Q. 2232
(S.C.); McAlpine of Nfld. Ltd. v. The Queen (1985), 9
C.L.R. 276 (F.C.T.D.); New West Construction Co. Ltd.
v. R., [1980] 2 F.C. 44 (T.D.).
AUTHORS CITED
Jackett, W. R. The Federal Court of Canada: A Manual
of Practice. Ottawa: Information Canada, 1971.
COUNSEL:
P. N. M. Glass for plaintiffs.
E. A. Bowie, Q.C. and Margaret N. Kinnear
for defendant.
SOLICITORS:
Swinton & Company, Vancouver, for plain
tiffs.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for order ren
dered in English by
MCNAIR J.: This is a motion by the plaintiffs
for various forms of interlocutory and procedural
relief, made pursuant to Federal Court Rules
[C.R.C., c. 663] 302(b), 419(1)(d), 419(1)(f),
448, 460, 465(18) and 465(20) and sections 7 and
24(1) of 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.)]. The claims for relief are said to arise
from the Crown's refusal to provide certain docu
ments and information and the further refusal to
answer certain questions on examination for dis
covery, all of which are based on the grounds of
executive privilege under section 36.3 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
(Schedule III))].
The background of the whole matter is the
plaintiffs' action for a declaration challenging the
constitutional validity of the Maintenance of Ports
Operations Act, 1986, S.C. 1986, c. 46, which the
plaintiffs say violates their right of freedom of
association and right to liberty under paragraph
2(d) and section 7 of the Charter. In furtherance
of these claims, the plaintiffs' solicitors requested
the defendant's solicitors to furnish information
and produce documentation relating to the circum
stances surrounding the introduction and passage
of the Maintenance of Ports Operations Act, 1986.
The defendant's solicitors have consistently
refused to provide any information or documents
which would disclose confidences of the Queen's
Privy Council for Canada, relying on section 36.3
of the Canada Evidence Act. In further advance
ment of their case, the plaintiffs' solicitors con
ducted an examination for discovery of the defend
ant's nominated officer, William Kelly. Mr. Kelly
refused to answer the questions enumerated in
paragraph 5 of the notice of motion, on the
instructions of counsel. The basis of such refusal
was the same unwillingness to disclose confidences
of the Queen's Privy Council for Canada.
The plaintiffs' strategy in all this, as it seems to
me, is twofold, namely: (1) to ascertain the objec
tives of Parliament in enacting the Maintenance of
Ports Operations Act, 1986 by compelling the
disclosure of Cabinet confidences with respect
thereto, whether oral or documentary; and (2) to
disprove and effectually demolish in advance the
defendant's defence of justifiable limitation under
section 1 of the Charter raised by paragraph 7 of
the defence, even though conceding the onus of
proving any such section 1 limitation rests solely
on the defendant. Paragraph 7 pleads as follows:
7. In the alternative, and in further answer to paragraph 13
and to the Statement of Claim as a whole, he says that if the
Act or any part of it, in any way limits any of the rights and
freedoms of the plaintiff then any such limit is a reasonable
one, is prescribed by law, and is demonstrably justified in a free
and democratic society, and is thus permissible within the
provisions of the Canadian Charter of Rights and Freedoms.
The whole matter of privilege from disclosure of
confidences of the Queen's Privy Council for
Canada is governed by section 36.3 of the Canada
Evidence Act, R.S.C. 1970, c. E-10, as amended
by S.C. 1980-81-82-83, c. 111, s. 4 (Schedule III),
which was proclaimed on November 23, 1982, and
reads:
36.3 (I) 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 diséus-
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.
A certificate in writing signed by the Clerk of
the Privy Council, Paul M. Tellier, and dated
April 18, 1988, was filed in pursuance of subsec
tion 36.3(1) of the Act. The certificate reads as
follows:
CERTIFICATE
I, PAUL M. TELLIER, public servant, residing in the City of
Ottawa, in the Regional Municipality of Ottawa-Carleton, in
the Province of Ontario, do certify and say:
I. I am the Clerk of the Privy Council for Canada and the
Secretary to the Cabinet.
2. I have personally examined and carefully considered each of
the questions asked on the examination for discovery of Wil-
liam P. Kelly conducted on the 18th and 19th days of Novem-
ber 1987 enumerated in paragraph 5 of a Notice of Motion
dated the 5th day of April 1988 filed by the Plaintiffs in this
action.
3. I certify to this Honourable Court pursuant to subsection
36.3(1) of the Canada Evidence Act R.S.C. 1970, c. E-10, as
amended by 1980-8I-82 (Can.) c. 11I, that, for the reasons set
out in the Schedule attached hereto, to answer in full the
questions referred to in paragraph 2 above except question 155,
156, 247 and 256 would reveal information constituting confi
dences of the Queen's Privy Council of Canada, and I object to
the disclosure of that information.
4. I further certify that a Record of a Cabinet decision of the
kind described in the last question on page 105 of the transcript
of the examination referred to in paragraph 2 above would be a
confidence of the Queen's Privy Council for Canada as
described in Section 36.3(2)(c) of the Canada Evidence Act.
5. I further certify to this Honourable Court that subsection
36.3(4) of the Canada Evidence Act does not apply in respect
of any of the information which would be revealed in answer to
the questions referred to in paragraph 2 above.
DATED AT OTTAWA, in the Province of Ontario, this 18th day
of April, 1988.
[Sgd] Paul M. Tellier
Paul M. Tellier
Clerk of the Queen's Privy
Council for Canada and
Secretary to the Cabinet
SCHEDULE
To answer in full the following questions would reveal infor
mation constituting proposals, recommendations or policy
options to or for consideration by the Queen's Privy Council for
Canada and thus would reveal confidences of the Queen's Privy
Council for Canada:
Q. 94, Q. 96, Q. 97, Q. 98, Q. 130
Q. 133, Q. 135, Q. 138, Q. 170
Q. 236, Q. 242, Q. 243.
To answer in full the following questions would reveal delib
erations or decisions of the Queen's Privy Council for Canada
or communications between or decisions of Ministers of the
Crown on matters relating to the making of government deci
sions or the formulating of government policy and, therefore,
would reveal confidences of the Queen's Privy Council for
Canada:
•
Q. 139, Q. 158, Q. 242, Q. 258, Q. 260
p. 85 line 11 to p. 86 line 20,
Q. 264, Q. 275, Q. 277, Q. 278, Q. 281
Q. 282, Q. 283, Q. 284, last Question
on p. 103, last Question on p. 104.
The real point of the case sought to be made on
the motion, as it seems to me, is whether section
36.3 of the Canada Evidence Act is constitutional
ly valid.
The Charter provisions relevant to this issue are
sections 1 and 7 which read as follows:
1. The Canadian Charter of Rights and Freedoms guaran
tees the rights and freedoms set out in it subject only to such
reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society.
7. Everyone has the right to life, liberty and security of the
person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.
The plaintiffs insist that the principles of funda
mental justice require that all relevant information
be forthcoming with respect to the defendant's
section 1 plea. Plaintiffs' counsel argues that a
section 1 inquiry requires the party relying thereon
to prove that the measures enacted by the
impugned legislation are "carefully designed and
rationally connected to the legislative objective".
This in turn demands an explanation of why and
under what circumstances the law was enacted. It
follows therefore that any inquiry into the objec-
tives and purposes of the legislation must neces
sarily include a judicial examination of the whole
process in which the legislation was formulated. In
short, the "objective purpose" is not merely to be
divined from the legislation itself.
Plaintiffs' counsel relies strongly on the author
ity of The Queen v. Oakes, [1986] 1 S.C.R. 103,
wherein the Supreme Court of Canada delineated
the justificatory criteria against which the defence
of a section 1 limitation must be measured. The
case also affirmed that the onus of proving that a
limit on a right or freedom guaranteed by the
Charter was reasonable and demonstrably justified
in a free and democratic society rested upon the
party seeking to uphold the limitation, which was
determinable on the standard of "a preponderance
of probability".
Dickson C.J. explained these two central criteria
in Oakes, supra, at pages 138-139:
To establish that a limit is reasonable and demonstrably
justified in a free and democratic society, two central criteria
must be satisfied. First, the objective, which the measures
responsible for a limit on a Charter right or freedom are
designed to serve, must be "of sufficient importance to warrant
overriding a constitutionally protected right or freedom": R. v.
Big M Drug Mart Ltd., supra, at p. 352. The standard must be
high in order to ensure that objectives which are trivial or
discordant with the principles integral to a free and democratic
society do not gain s. I protection. It is necessary, at a
minimum, that an objective relate to concerns which are press
ing and substantial in a free and democratic society before it
can be characterized as sufficiently important.
Second, once a sufficiently significant objective is recognized,
then the party invoking s. 1 must show that the means chosen
are reasonable and demonstrably justified. This involves "a
form of proportionality test": R. v. Big M Drug Mart Ltd.,
supra, at p. 352. Although the nature of the proportionality test
will vary depending on the circumstances, in each case courts
will be required to balance the interests of society with those of
individuals and groups. There are, in my view, three important
components of a proportionality test. First, the measures adopt
ed must be carefully designed to achieve the objective in
question. They must not be arbitrary, unfair or based on
irrational considerations. In short, they must be rationally
connected to the objective. Second, the means, even if rational
ly connected to the objective in this first sense, should impair
"as little as possible" the right or freedom in question: R. v. Big
M Drug Mart Ltd., supra, at p. 352. Third, there must be a
proportionality between the effects of the measures which are
responsible for limiting the Charter right or freedom, and the
objective which has been identified as of "sufficient
importance".
Consequently, it is urged that the Crown's elec
tion to invoke section 36.3 of the Canada Evidence
Act raises an insurmountable barrier against elicit
ing any information which might serve to illustrate
the legislative intent underlying the enactment of
the Maintenance of Ports Operation Act, 1986,
and thus entirely frustrates the plaintiffs' case.
Actually, what the plaintiffs are really asking of
the Court is a declaration to the effect that section
36.3 of the Canada Evidence Act is unconstitution
al and of no force and effect, notwithstanding that
the constitutional validity of the impugned section
was not put in issue by the plaintiffs' pleadings.
I fail to see how the plaintiffs can reasonably
expect that a constitutional issue of this magnitude
be determined by way of a declaration on sum
mary motion, where they have not raised the issue
of the constitutionality of section 36.3 of the
Canada Evidence Act in their pleading. Under the
Federal Court Rules, declaratory relief cannot be
sought by originating motion, but only by an
action: Wilson v. Minister of Justice, [1985] 1
F.C. 586 (C.A.) approving Rothmans of Pall Mall
Canada Limited v. Minister of National Revenue
(No. 2), [1976] 2 F.C. 512 (C.A.). Nevertheless,
counsel for the plaintiffs is adamant in his view
that there has to be some way of obtaining the
disclosure of information pertaining to what went
on in the minds of the Cabinet sponsors of the
Maintenance of Ports Operations Act, 1986 and
marking out the documentary paper trail disclos
ing its true objectives. Counsel for the defendant
naturally takes strong exception to this.
Counsel for the plaintiffs further contends that
the defendant has to fully comply with Rule 447
with respect to discovery and inspection of docu
ments between the parties. He relies on the
double-barrelled effect of Rules 460(1) and 302(b)
in support of this argument, pointing out that it is
the Crown which has raised the defence of a
section 1 inquiry. Thus, the Crown has the onus of
establishing the existence of the criteria set out in
the Oakes case with the result that the Crown's
election to invoke executive privilege under section
36.3 of the Canada Evidence Act is not a "reason-
able excuse" for the failure to provide documents
as required by Rule 460. He also invokes Rule
465(20) to support his motion that paragraph 7 of
the defence be struck out by reason of the Crown's
failure to provide a reasonable excuse. Rule 448
discovery of documents is also claimed in para
graph 3 of the notice of motion. Here, the plain
tiffs demand production of a Rule 448 list of
documents, verified by affidavit, of the classes or
categories requested in a letter of November 10,
1987 from plaintiffs' counsel to defendant's coun
sel. These documents are additional to those
included in the defendant's Rule 447 list and
comprise in the main Cabinet memoranda,
minutes, briefing books, legislative drafts and
other like documents pertaining to the policy-mak
ing or legislative processes with respect to the Bill
implementing the Maintenance of Ports Opera
tions Act, 1986. Needless to say, these are the
documents seemingly contemplated by subsection
36.3(2) of the Canada Evidence Act.
Plaintiffs' counsel also invokes the authority of
Rule 419(1)(d) and 419(1)(f) to support his argu
ment for striking the section 1 plea in defence. The
contention here is that the Crown's failure to
disclose the requested information and documents
would prejudice or embarrass the fair trial of the
action or would otherwise constitute an abuse of
the Court's process. Finally, plaintiff's, counsel
relies on subsection 24(1) of the Charter to urge
that the Court rise to the occasion in providing an
appropriate and just remedy to override the pro
tection of section 36.3 of the Canada Evidence Act
and compel the production of the requested infor
mation and documents.
It seems to me that all these interlocutory claims
for relief are inextricably linked to the central
theme of the plaintiffs' case, which is that the
pleading of a section 1 defence opens wide the door
to a multifarious and far-ranging inquiry into the
policy considerations underlying the impugned
legislation.
Defendant's counsel submits that the common
law convention of Cabinet confidentiality has been
codified in section 36.3 of the Canada Evidence
Act, and says that he is unaware of any case where
a court addressed itself to what may have been in
the mind of Cabinet ministers in discussing pro
posed legislation. He further contends that the real
issue in the case is the collective mind of Parlia
ment as expressed in the legislation itself. Defen
dant's counsel vigorously presses the point that the
mere pleading of a Charter violation does not
dispense with the necessity or proof thereof and an
adjudication on the merits at trial. Finally, he
contends that the plaintiffs have failed to make out
a case for a general discovery of documents under
Rule 448.
It seems to me that if I were to grant the relief
sought by the plaintiffs on their motion, I would
have to virtually assume that the plaintiffs' rights
under the Charter have been infringed. I am not
prepared to make any such assumption on sum
mary motion nor, by the same token, am I pre
pared to try the essential merits of the plaintiffs'
Charter argument, which are better left for adjudi
cation at trial. While cases involving allegations of
the violation of a party's rights under the Charter
undoubtedly raise constitutional issues of great
importance, nevertheless the onus still rests on that
party of proving the alleged violations. Proof does
not automatically result from the mere fact of
pleading. Once a plaintiff has made out a prima
facie case then, in my view, the onus shifts to his
opponent to prove that the rights found to have
been violated under the Charter are subject tc
"such reasonable limits prescribed by law as can
be demonstrably justified in a free and democratic
society". Moreover, when a party brings an action
challenging the constitutional validity of legisla
tion on the grounds of Charter violations then such
party must face the possibility of the action being
defended by the party sued, who is entitled to have
resort to all available rules of practice and proce
dure in conducting his defence. In my view, it
would be wrong to conclude that simply because a
plaintiff in an action raises allegations of Charter
violations, this of itself necessarily circumscribes
and limits the scope and range of the procedures
available to the other party in his defence of the
suit. This seems to be the very point under scrutiny
in the present motion.
In my opinion, one avenue of defence available
to the Crown in the circumstances of this case is
section 36.3 of the Canada Evidence Act. I am of
the view that the section represents a recent codifi
cation by Parliament of the constitutional conven
tion cognizable at common law in respect of Cabi
net confidences for documents and information
pertaining to the collective decision-making pro
cess, which features in all Cabinet deliberations.
Incidentally, the right of Parliament to legislate
with respect to Crown privilege was not challenged
by the plaintiffs, nor was the constitutionality of
section 36.3 of the Canada Evidence Act chal
lenged per se. If I apprehend the plaintiffs' argu
ment correctly, it is simply that the operation of
the section in the present case enables the defen
dant to plead section 1 of the Charter, thereby
denying the plaintiffs the opportunity to test the
legislation in light of its true objectives and pur
poses, which are said to be presently hidden behind
the section 36.3 certificate. The fact of this con
cealment amounts to the deprivation of the plain
tiffs' right to liberty under section 7 of the Chart
er, contrary to the principles of fundamental
justice. I am unable to accept this submission. In
my view, section 36.3 of the Canada Evidence Act
is essentially a rule of evidence which creates a
statutory privilege against the disclosure of infor
mation constituting confidences of the Queen's
Privy Council for Canada, and that privilege is
encompassed by specific legislation within the
legislative competence of the Parliament of
Canada.
Plaintiffs' counsel referred at length to the
increasing complexity and diversity of evidentiary
points having to be considered by the courts in
Charter litigation. None of the authorities cited by
plaintiffs' counsel advocate the complete abandon
ment of the law of evidence and the rules of
practice. Furthermore, I fail to see how the use of
section 36.3 by the defendant prejudices the plain
tiffs' rights to a fair hearing and adjudication of
their action. As I see it, the fact that actions must
be tried in accordance with prescribed rules of
practice and procedure and subject to the proper
laws of evidence is but part and parcel of the
principles of fundamental justice and a safeguard
against litigious anarchy.
The case of Smith, Kline & French Laborato
ries Limited v. Attorney General of Canada,
[1983] 1 F.C. 917 (T.D.) held that where there
was a proper certificate pursuant to subsection
36.3(1) of the Canada Evidence Act before the
court, the court cannot go behind the certificate
and examine the documents. In other words, a
proper certificate is conclusive of the privilege
asserted.
Strayer J. explained it this way, at pages
929-930:
It is clear from subsection 36.3(l) that where there is a
proper certificate by the Clerk of the Privy Council objecting to
the disclosure of information 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, how
ever, 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 government documents and infor
mation, 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 substantially the unfettered
discretion of the executive to withhold information and docu
ments which would otherwise be relevant to a matter before the
courts.
I agree with counsel for the defendant that the
case of Carey v. Ontario, [1986] 2 S.C.R. 637; 72
N.R. 81 is distinguishable from the present case on
two points, namely: (1) the claim of privilege was
made for Cabinet documents with respect to the
government's tourist policy, a matter of relatively
low level policy; and (2) Ontario had no statutory
privilege provision comparable to section 36.3 of
the Canada Evidence Act. Moreover, it seems to
me that the first distinction goes hand in hand
with the following passage from the judgment of
Mr. Justice La Forest in Carey, supra, at pages
671-672:
In the present case, however, we are dealing with a claim
based solely on the fact that the documents concerned are of a
class whose revelation might interfere with the proper function
ing of the public service. It is difficult to see how a claim could
be based on the policy or contents of the documents. We are
merely dealing with a transaction concerning a tourist lodge in
northern Ontario. The development of a tourist policy undoubt
edly is of some importance, but it is hardly world-shaking.
The paramountcy of section 36.3 of the Canada
Evidence Act with respect to privileged Cabinet
confidences was affirmed by the majority decision
of the Federal Court of Appeal in Canada (Audi-
tor General) v. Canada (Minister of Energy,
Mines and Resources), [1987] 1 F.C. 406 (C.A.).
Likewise, in Ouvrage de raffinage de métaux
Dominion Ltée c. Energie atomique du Canada
Ltée, [1988] R.J.Q. 2232 (S.C.), Marquis J.C.S.,
upheld the inviolability of a proper section 36.3
certificate. In addition, he dismissed the motion
claim of the plaintiff that subsection 36.3(1) was
incompatible with paragraph 2(e) of the Canadian
Bill of Rights [R.S.C. 1970, Appendix III] in that
the non-disclosure did not deny the plaintiff's right
to a fair hearing.
It would appear therefore that the sole role
available to the Court with respect to the certifi
cate issued in this case is to determine whether or
not the certificate, on its face, is proper in form
and asserts a privilege within the categories of
subject-matter in subsection 36.3(2) of the Act.
I am satisfied that the present certificate is a
proper certificate within the context of the princi
ple enunciated in Smith, Kline & French v. Attor
ney General of Canada, supra. It indicates the
questions within the ambit of subsection 36.3(2)
and the categories to which they relate. Further
more, it conforms with the requirements of subsec
tions 36.3(1) and 36.3(4). The certificate exempts
the following discovery questions, namely, Q. 155,
Q. 156, Q. 247 and Q. 256. Counsel for the
defendant quite fairly undertakes to provide
answers to the requests for information posed by
these questions, to the extent that they do not
require the disclosure of Cabinet confidences. In
the result, I find that the certificate is sufficient to
protect the Cabinet confidences referred to in the
discovery questions enumerated therein. Under the
circumstances, I also find that the certificate con
stitutes a reasonable excuse for not striking the
defence, or at least paragraph 7 thereof, under
Rules 460 and 465(20). By the same token, the
certificate operates as a bar to the plaintiffs'
motion to strike under Rule 419(1)(d) and
419(1)(f).
In final analysis, it is my opinion that the basic
fallacy of the plaintiffs' argument lies in the sub
mission that an inquiry under section 1 of the
Charter necessarily requires the defendant to pro
vide confidences of the Queen's Privy Council for
Canada with respect to the whole evolutionary
process by which a Bill before Parliament becomes
the law of the land. With respect, I am bound to
disagree. As Chief Justice Dickson pointed out in
Oakes, the starting point for formulating a
response to the question of whether a section 1
limitation is reasonable and demonstrably justified
in a free and democratic society is "the nature of
Parliament's interest or objective which accounts
for the passage" of the impugned legislation. In
my opinion, a section 1 inquiry requires an anal
ysis of Parliament's objective and the means
chosen by Parliament for achieving the same as
manifested by the legislation itself, rather than
involving a consideration of the whole range of
policy options deliberated upon by Cabinet in the
course of introducing such legislation.
The only remaining matter for consideration is
the relief claimed in paragraph 3 of the plaintiffs'
notice of motion, wherein they seek full discovery
of documents under Rule 448. Defendant's counsel
submits that the plaintiffs have not made out a
case for Rule 448 discovery. It is obvious that he
relies on section 36.3 of the Canada Evidence Act
to support the claim for Crown privilege with
respect to Cabinet documents constituting confi
dences of the Queen's Privy Council for Canada.
What is at issue here, as it seems to me, is whether
section 36.3 of the Act is capable of sustaining the
privilege against the disclosure of confidences con
tained in Cabinet documents in the absence of any
certificate on the part of the Clerk of the Privy
Council identifying those documents and asserting
the particular grounds of privilege claimed in
respect thereof. At the other end of the argument
spectrum, plaintiffs' counsel seems to be advancing
the rather startling proposition that I should not
only order a Rule 448 discovery, but take the
matter one step further along the road to full
disclosure by ordering that the defendant be pre
cluded from asserting any claim of privilege under
section 36.3 in respect of any such discovery.
Needless to say, I am not prepared to accede to
this novel submission. The question remains
whether I should compel the defendant to make
general discovery of documents under Rule 448
and verify the same by affidavit, in accordance
with the prescribed Forms 20 and 21 of the Feder
al Court Rules.
Much of this ground has already been ploughed
over, the first furrow beginning with a letter of
November 10, 1987 from the plaintiffs' solicitors
to the defendant's solicitors. The letter identified
in numbered paragraphs 1 to 12 inclusive the
Cabinet documents for which disclosure and pro
duction were sought. Prima facie, all or most of
these seem to fall within the category of confi
dences of the Queen's Privy Council for Canada,
as enumerated in subsection 36.3(2) of the Canada
Evidence Act. Further searches were undertaken in
response to this request and opinions were formed
as to the privileged nature of the documents
referred to in the said letter, as by reference to the
affidavits of Elizabeth MacPherson and Ward Ell-
cock will more fully appear. These affidavits were
filed respectively on April 14 and April 19, 1988,
prior to the hearing of the motion. Defendant's
counsel responded to the request of the plaintiffs'
solicitors by letter dated January 8, 1988, which
reads in part as follows:
We provided to you our List of Documents, and copies of those
documents, pursuant to Rule 447 and the Order of Mr. Justice
Collier prior to the examination for discovery. In addition, after
receiving your letter of November 10 we identified and pro
duced to you at the time of the examination for discovery
certain further documents most, if not all, of which were
marked as exhibits. I am not aware of any other documents
that would fall within the categories that you have requested in
your letter of November 10 except documents whose produc
tion would be contrary to Section 36.3 of the Canada Evidence
Act.
Is this a sufficient answer or should the defen
dant be compelled to make and file a list of
documents and verify the same by affidavit in
accordance with the requirements of Rule 448, for
which privilege is claimed by virtue of section 36.3
of the Canada Evidence Act?
Generally speaking, a party seeking Rule 448
discovery must satisfy the court that there is some
thing in the circumstances of the particular case
necessitating this old-style and more expensive
type of discovery of documents. For a useful dis
course on the topic of discovery and inspection of
documents, see W. R. Jackett, The Federal Court
of Canada: A Manual of Practice, Ottawa: Infor
mation Canada, 1971 at pages 68-69. An order for
Rule 448 discovery is purely discretionary and
will, more often than not, be refused where the
party has already made voluminous production
under Rule 447: McAlpine of Nfld. Ltd. v. The
Queen (1985), 9 C.L.R. 276 (F.C.T.D.); and New
West Construction Co. Ltd. v. R., [1980] 2 F.C. 44
(T.D.).
I am persuaded that it would be appropriate in
the circumstances of the case to grant an order for
Rule 448 discovery, but limited in its scope and
range of production to the class or classes of
documents categorized in paragraphs 1 to 10
inclusive of the aforementioned letter of November
10, 1987 from the plaintiffs' solicitors. Such order
will necessarily be without prejudice to the defen
dant's right to object to the production of any such
document or documents on the ground of the
privilege created by section 36.3 of the Canada
Evidence Act and upon production of a proper
certificate in pursuance thereof from the Clerk of
the Privy Council.
For the foregoing reasons, the plaintiffs' motion
is dismissed with respect to the claims for relief set
out in paragraphs 1, 2, 4, 5, 6, 7, 8 and 9 of the
notice of motion. The claim for Rule 448 discovery
set out in paragraph 3 thereof is granted, subject
to the limitations aforesaid. My direction or ruling
on costs is that they be in the cause. An order will
go accordingly.
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.