Carey v. Ontario, [1986] 2 S.C.R. 637
H. Rod Carey Appellant
v.
Her Majesty The Queen in right of Ontario, the Ontario Development Corporation, the Northern Ontario Development Corporation, Claude Bennett and Allan Grossman Respondents
indexed as: carey v. ontario
File No.: 18060.
1985: October 2; 1986: December 18.
Present: Beetz, McIntyre, Chouinard, Lamer, Wilson, Le Dain and La Forest JJ.
on appeal from the court of appeal for ontario
Evidence ‑‑ Crown privilege ‑‑ Production of cabinet and cabinet committee documents necessary to legal case ‑‑ Low level policy matter several years old and of little public interest ‑‑ Crown privilege claimed because of class of documents ‑‑ Whether court should inspect documents to decide whether Crown's claim valid ‑‑ Whether Crown's claim to immunity should be upheld.
The Government of Ontario increasingly became financially involved with Minaki Lodge, a resort in northwestern Ontario, and eventually became owner. Its dealings with appellant, the principal and later controlling shareholder of the lodge, gave rise to this action. On examination for discovery, the defendants' witnesses claimed an absolute privilege respecting all documents that went to or emanated from Cabinet and its committees. The claim was not based on the contents of the documents but on the class to which they belonged. Production, it was alleged, would breach confidentiality and inhibit Cabinet discussion of matters of significant public policy. An application to quash the subpoena duces tecum was granted, notwithstanding the judge's assumption that the documents would be relevant to the matters in issue. Both the Divisional Court and the Court of Appeal upheld that decision. At issue was whether to claim to refuse production of Cabinet documents as a class was valid, and whether it was necessary for the appellant to prove not only that the documents were relevant but also would assist his case.
Held: The appeal should be allowed.
The importance of withholding production on the basis of a public interest must be weighed against the public interest in the proper administration of justice. Protection of documents as a class was generally not favoured. There was public interest in the confidentiality of Cabinet deliberations in developing public policy, but this was only one of a number of variables to be taken into account in considering whether the interest in disclosure for the administration of justice was outweighed by other public interests. Among the variables to be weighed was the nature of the policy, whether it was contemporary or not, and the nature and importance of the action. In the present case, the information sought to be revealed concerned a particular transaction involving a low level policy matter that had taken place some thirteen years before.
Because high level documents were involved, the court should first inspect the documents to balance the competing interests in disclosing or producing them. The documents here were obviously relevant, and it was not necessary for appellant to further establish that they would assist his case.
Cases Cited
Considered: Robinson v. State of South Australia (No. 2), [1931] A.C. 704; Conway v. Rimmer, [1968] A.C. 910; Duncan v. Cammell, Laird & Co., [1942] A.C. 624; Burmah Oil Co. v. Bank of England, [1979] 3 All E.R. 700; Smallwood v. Sparling, [1982] 2 S.C.R. 686; United States v. Nixon, 418 U.S. 683 (1974); Attorney‑General v. Jonathan Cape Ltd., [1975] 3 All E.R. 484; Sankey v. Whitlam (1978), 21 A.L.R. 505; Air Canada v. Secretary of State for Trade (1983), 2 W.L.R. 494; Fletcher Timber Ltd. v. Attorney‑General, [1984] 1 N.Z.L.R. 290; referred to: R. v. Snider, [1954] S.C.R. 479; Gagnon v. Commission des valeurs mobilières du Québec, [1965] S.C.R. 73; Re Grosvenor Hotel, London (No. 2), [1964] 3 All E.R. 354; Glasgow Corporation v. Central Land Board, 1956 S.C. (H.L.) 1; Goguen v. Gibson, [1983] 2 F.C. 463; Rogers v. Home Secretary, [1973] A.C. 388; Environmental Defence Society Inc. v. South Pacific Aluminium Ltd., [1981] 1 N.Z.L.R. 146; R. and Vanguard Hutterian Brethren Inc. (1979), 97 D.L.R. (3d) 86; Smerchanski v. Lewis (1981), 31 O.R. (2d) 705; R. in Right of Alberta v. Mannix, [1981] 5 W.W.R. 343; Gloucester Properties Ltd. v. R. (1981), 24 C.P.C. 82; Lanyon Pty. Ltd. v. Commonwealth of Australia (1974), 129 C.L.R. 650.
Statutes and Regulations Cited
Canada Evidence Act, R.S.C. 1970, c. E‑10, ss. 36.1(2), 36.2(1) [both en. 1980‑81‑82‑83, c. 111, s. 4, sch. III].
Evidence Act, R.S.O. 1980, c. 145, s. 30.
Authors Cited
Williston, W. B. and R. J. Rolls. The Law of Civil Procedure, vol. 2. Toronto: Butterworths, 1970.
APPEAL from a judgment of the Ontario Court of Appeal (1983), 43 O.R. (2d) 161, 38 C.P.C. 237, 1 D.L.R. (4th) 498, 7 C.C.C. (3d) 193, affirming a judgment of the Divisional Court (1982), 39 O.R. (2d) 273, 31 C.P.C. 34, 146 D.L.R. (3d) 684, 4 C.C.C. (3d) 83, affirming a judgment of Catzman J. (1982), 38 O.R. (2d) 430, 28 C.P.C. 310, granting an application to quash a subpoena duces tecum. Appeal allowed.
J. L. McDougall, Q.C., and R. L. Armstrong, for the appellant.
T. H. Wickett, for the respondents.
The judgment of the Court was delivered by
1. La Forest J.‑‑This case involves a conflict between the public interest that a person who asserts a legal claim be afforded access to all information relevant to prove that claim, and the public interest against disclosure of confidential communications of the executive branch of government.
2. The immediate issue is whether the appellant Carey is entitled to compel production in an action against the Crown in right of Ontario and the other respondents of Cabinet documents in the possession of the executive government of the province which, he contends, would support his claim. In Ontario, this issue falls to be decided under common law.
3. The plaintiff's claim arises against the following background.
Factual Background
4. The Minaki Lodge is a tourist resort complex of some note located on the Winnipeg River a few miles north of Kenora and Lake of the Woods. In the early 1960s, Carey became associated with the controlling group then operating the lodge as a shareholder. There is dispute among the parties about the financial health of the lodge during the late 1960s, but no one questions that the tourist industry in the area was adversely affected when mercury contamination was discovered in the adjoining river system. As a result the lodge, which had operated only in the summer months, did not open in the summer of 1971 and was not scheduled to open for the summer of 1972.
5. By the fall of 1971, the Government of Ontario had become concerned about the damage resulting to the economy of northwestern Ontario from the closing of the lodge and took steps to keep it operating. Its dealing with Carey in attempting to effect this purpose is what gave rise to this action.
6. Carey alleges that in the fall of 1971, the Government offered to make good all losses of the operators through forgivable or interest‑free loans if the lodge was re‑opened. The Government, however, denies such an offer formed part of the loan assistance it was willing to extend. Carey further alleges that he accepted the alleged offer and, in reliance on it, acquired control of the lodge from his associates and re‑opened it in the summer of 1972. What is more, he adds, he kept it open at the Government's encouragement during the whole of the following winter and thereby incurred considerable losses for which the Government did not fully reimburse him. He claims he then advised the Government the lodge would be closed for the winter of 1973‑1974 but the Government asked him to keep it open pending the completion of a feasability study. The Government denies making any such request.
7. According to Carey, in November 1973 the Government told him it wished to continue the operation of the lodge and to invest a large sum of money in it so as to make the resort a centerpiece for the resort industry in the area. However, he adds, since it would be politically inexpedient to provide funds to a private owner, the Government proposed to become his partner. Carey says he agreed to this proposal and accordingly continued to operate the lodge, incurring very substantial monthly operating losses which were not absorbed by the Government except to the extent necessary to enable him to meet current payments. These allegations are also denied by the Government, which claims that all financial assistance provided to the appellant from 1971 to 1973 was through loans arranged with the Ontario Development Corporation.
8. In late 1973 or early 1974, a meeting was held between Carey and the Minister of Industry and Tourism and a number of officials including some of the Northern Ontario Development Corporation. Carey claims he was told the Government had decided to invest over $5 million in the lodge, and that he could either have it go into receivership and see its staff and creditors go unpaid or assign his interest to the Ontario Development Corporation. The Government agrees that there was a discussion of the financial difficulties of the lodge and of the available options. At all events, the appellant accepted a written offer from the Ontario Development Corporation for the transfer of his shares on the understanding that the Corporation would assume all the owners' outstanding indebtedness, except shareholders' loans. Apparently as part of these arrangements, the appellant later signed a three‑year consulting contract with the resort company for which he was to be paid some $15,000 a year. Carey asserts that he assigned his interests under the threat of receivership and its consequences. The Government, however, denies that he acted under any duress or compulsion.
The Action and Demand for Production
9. Some two years later, in March 1976, Carey brought the present action seeking damages, including exemplary damages, for breach of the alleged agreement, deceit and damage to reputation, the setting aside of the transfer on the grounds of duress and compulsion and as an unconscionable transaction, and a declaration that the appellant is the beneficial owner of the shares transferred by him. The action against the individual defendants was subsequently dismissed with consent, so only the Government and the two corporations remain as defendants.
10. On examination for discovery, the defendants' witnesses claimed an absolute privilege respecting all documents that went to Cabinet and its committees and all documents that emanated from it. When, in June of 1982, a date was fixed for trial, a subpoena duces tecum was served on the Secretary of the Cabinet for Ontario, Dr. E. E. Stewart, requiring him to attend at trial and bring all documents relating to the proceedings described in the subpoena. The Government then applied to quash the subpoena, and in support of the application filed an affidavit sworn by Dr. Stewart in which he acknowledged that he had relevant documents under his control but objected to their production on the basis that "it would not be in the public interest to produce these documents, or to make them available for inspection, even for the limited purposes of this litigation." By s. 30 of the Ontario Evidence Act, R.S.O. 1980, c. 145, such objection has the like effect as if it were made by a member of the Executive Council of the Province.
11. Dr. Stewart listed the documents in two schedules to his affidavit. The first schedule lists documents in the possession of his office at the time the subpoena was served on him. The second lists those formerly in his office but now in the possession of the archives where they would normally be kept confidential and unavailable for public access for a period of thirty years.
12. The affidavit claims privilege against disclosure of all these documents except a few orders in council and formal minutes of the Management Board. The claim of privilege is not based on the contents of these documents, which are not revealed, but on the class to which they belong, i.e. documents prepared for Cabinet, or that emanated from Cabinet, or that record its proceedings or those of its committees. These may compendiously be described as "Cabinet documents", although there may in some circumstances be ground for making a distinction between them.
13. The basis of the claim for the privilege against production of the documents is set forth in the following excerpts from the affidavit:
...it is my firm opinion that it has consistently been assumed and taken for granted at all material times by all members of the Executive Council, and by all members of the staff of the Cabinet office, that all of the discussions in the Executive Council are private and confidential, and will not be published or revealed to any persons who are not members of the Council. It has also been consistently realised and appreciated by all members of the Council that the decisions taken by it are collegial or group decisions, for each of which they all share responsibility.
It is also my firm opinion that it has consistently been assumed by the members of the Executive Council, and by the staff of the Cabinet office and the various government ministries, that documents prepared by sub‑committees of the Cabinet for use by the Cabinet, and documents prepared by ministries or other government organizations for use by the Cabinet are privileged and confidential and will not be made public.
I have read and reviewed the documents listed in Exhibit 1 for which privilege is claimed. In my considered opinion, for the reasons set out below, it would not be in the public interest to produce these documents, or to make them available for inspection, even for the limited purposes of this litigation.
The notes kept by members of Cabinet staff of the discussions at Cabinet meetings do not purport to be complete, and do not indicate the basis upon which any individual member, or the Executive Council itself, formed a decision. They indicate certain points raised by individual members of Cabinet, and more importantly, they record the decisions reached by Cabinet....
It is my firm opinion that if these notes of the discussions in the Executive Council were to be produced, it would almost necessarily lead to a distorted, incomplete and inaccurate impression of the nature of the actual discussion which took place. It is also my opinion that if these notes were produced, it would in future affect the nature of the discussions in Cabinet, and would inhibit the freedom of the members of Cabinet to discuss matters of significant public concern and policy, to the detriment of the public interest.
The Courts Below
14. Catzman J. of the Supreme Court of Ontario (1982), 38 O.R. (2d) 430, 28 C.P.C. 310, assumed without deciding that the documents in question would be relevant to the matters in issue between the parties to the litigation. However he ordered that the subpoena duces tecum be quashed and set aside largely on the basis of the Ontario Court of Appeal decision in Smerchanski v. Lewis (1981), 31 O.R. (2d) 705 where it was stated, at p. 711, that documents relating to Cabinet proceedings are by their nature generally acknowledged to be privileged. For this and other reasons, he also rejected the suggestion that he inspect the documents privately so as to determine where the balance of public interest lay.
15. An appeal to the Divisional Court for Ontario was dismissed: (1982), 39 O.R. (2d) 273, 31 C.P.C. 34, 146 D.L.R. (3d) 684, 4 C.C.C. (3d) 83. White J., who gave the judgment of the Court, held, citing inter alia, Smerchanski v. Lewis, that Cabinet documents are presumed to be privileged under the doctrine of Crown privilege or public interest immunity in the absence of special circumstances, such as an allegation of criminal activity, malfeasance, misfeasance, nonfeasance, irregularity or other improprieties in the conduct of the members of the Cabinet or those reporting to the Cabinet, of which the documents in issue would be proof. In his view, the onus of establishing such circumstances is on those who seek production of the documents. Carey would have to discharge this onus before the court would look at the documents and embark on the process of weighing the interest in the confidentiality of executive or Cabinet deliberations against the interest in making available all relevant evidence to a court.
16. On the appeal to the Court of Appeal of Ontario (1983), 43 O.R. (2d) 161, 38 C.P.C. 237, 1 D.L.R. (4th) 498, 7 C.C.C. (3d) 193, that court rejected the "very special circumstances" rule propounded by the Divisional Court. It, however, dismissed the appeal for reasons set forth in the judgment of Thorson J.A. After an extensive examination of the case law, he concluded that the Crown (i.e. the provincial Government) had no absolute privilege or immunity from disclosure of documents based on either their content or class. The Crown could, however, claim protection of certain documents from disclosure on the basis of a specified public interest. Where such a claim is properly made, he stated, it will prevail unless the party seeking their production can persuade the court that there are cogent and concrete grounds that will substantially assist his case, that the issue to which the documents are relevant is one of real substance and is not raised merely to gain access to the documents, and that it is unlikely that the facts sought to be established by the documents can be otherwise proved. Only after this is done will the court proceed to examine the documents with a view to balancing the competing interests. In the case at hand, concrete and cogent grounds had not been presented. Nor had sufficient time elapsed to remove concern about the publication of the documents.
17. Although it did not have to deal with the issue in view of the conclusion it had arrived at, the Court thought it desirable to comment on the submission made on behalf of the Government that where a court decided to order an inspection, the Government should have a right to appeal before the court proceeded to act on that order, and if the Court of Appeal made such an order, the Government should be given an opportunity to seek leave to appeal to this Court. The Court of Appeal disagreed with this contention on the ground that it knew of no procedure by which this could be done and because of the practical consequences that could ensue from allowing this argument to prevail.
18. Leave to appeal to this Court was granted on December 3, 1983, [1983] 2 S.C.R. vi.
Grounds of Appeal
19. Counsel for Carey contends that the Court of Appeal erred
(a) in finding that Dr. Stewart's affidavit was sufficient to support the claim for non‑disclosure despite the fact that it did not specify any special circumstances or particular damage to the public interest;
(b) in its formulation of the test to be applied in determining the circumstances in which the Crown will be obliged to produce Cabinet and other important documents at trial;
(c) in that it established the requirements to be met by a party seeking production of Crown documents relying, in large part, upon the English authorities which in turn relied upon the English rules of practice which have no equivalent in the provinces or territories of Canada.
20. Counsel for the respondents specified that the claim of privilege was put forward solely on the basis of the class of documents in issue and not on the basis of content. He further contended that the Court of Appeal erred in stating that the Government did not have a separate right to appeal from an order that the documents be inspected.
21. I do not propose to enter into the latter point in any detail, but I shall only make the following brief remarks. Appeals are creatures of statute, and counsel did not draw our attention to any statute permitting an appeal to the Court of Appeal from an order for inspection. He simply relied on English and New Zealand cases, which as Thorson J.A. remarked may rest on a different statutory basis. So far as the jurisdiction of this Court is concerned, it is premature to discuss the issue until it arises. I might say, however, that I am impressed with the practical implications mentioned by Thorson J.A. militating against permitting appeals to be heard on issues of this kind until the final disposition of the action. This is especially true in view of the fact that a special procedure has been provided for dealing with the really sensitive issues such as international relations and national defence and security; see Canada Evidence Act, R.S.C. 1970, c. E‑10, ss. 36.1(2), 36.2(1), as enacted by S.C. 1980‑81‑82‑83, c. 111, s. 4, sch. III.
General Legal Background
22. It is obviously necessary for the proper administration of justice that litigants have access to all evidence that may be of assistance to the fair disposition of the issues arising in litigation. It is equally clear, however, that certain information regarding governmental activities should not be disclosed in the public interest. The general balance between these two competing interests has shifted markedly over the years. At times the public interest in the need for government secrecy has been given virtually absolute priority, so long as a claim to non‑disclosure was made by a Minister of the Crown. At other times a more even balance has been struck.
23. This difference in emphasis resulted in part from the manner in which the interests collided in particular cases. The need for secrecy in government operations may vary with the particular public interest sought to be protected. There is, for example, an obvious difference between information relating to national defence and information relating to a purely commercial transaction. On the other side of the equation, the need for disclosure may be more or less compelling having regard to the nature of the litigation (e.g. between a criminal and civil proceeding) and the extent to which facts may be proved without resort to information sought to be protected from disclosure.
24. The shift in the balance between the two interests has also been affected by changing social conditions and the role of government in society at various times. When the early cases were decided, the activities of government were restricted to larger political issues. There was no general right to sue the Crown. The issue, therefore, did not frequently arise and when it did, it was often in the context of a suit between private litigants. In that period, it would appear, the tendency of the Crown was to produce evidence requested by litigants in the absence of some compelling reason that could not be disregarded; see the authorities cited by Lord Blanesburgh in Robinson v. State of South Australia (No. 2), [1931] A.C. 704 (P.C.), at p. 714.
25. With the expansion of state activities into the commercial sphere, different attitudes to suits against the Crown developed and statutes were enacted to make these possible. The general social context also affected attitudes towards government secrecy. One can scarcely expect the views on this issue to be the same in wartime conditions when the total energy of the nation must be concentrated on winning the war, and an era of peace in which government activity impinges on every aspect of our lives and there is in consequence increased demands for more open government. The question, as Lord Upjohn noted in Conway v. Rimmer, [1968] A.C. 910 at p. 991, is one that invites periodic judicial reassessment. Not surprisingly, conflicting dicta can scarcely be reconciled.
26. The widely divergent views on the subject may conveniently be illustrated by the two cases that first gave rise to the modern debate on the subject, Robinson v. State of South Australia, just cited, before the Privy Council, and Duncan v. Cammell, Laird & Co., [1942] A.C. 624, before the House of Lords.
27. In Robinson's case, Robinson sued the State of Australia for the amount of damage that had resulted to his wheat in the possession of the State under wheat marketing legislation. The damage, it was alleged, resulted from the negligence of the agents of the State who handled the wheat. To establish his case, Robinson sought and obtained an order to obtain full discovery of all documents in the possession of the State relating to the matters in controversy. By affidavit, however, the State claimed that 1,892 State documents were privileged since their disclosure would be contrary to the interests of the State. The documents were said to comprise communications between officers administering the departments concerned.
28. The Privy Council decided against the State's claim for non‑disclosure. The documents claimed, it said, were vital to the plaintiff's case. Besides, the privilege claimed was a narrow one to be exercised sparingly, and no further than was necessary for the protection of public interests. Lord Blanesburgh noted that the documents did not relate to the political activities of the State, but to its trading, commercial or contractual activities. While documents relating to the latter might properly not be disclosed in order to safeguard genuine public interests, the increasing extension of state activities into the spheres of business and commerce coupled with the apparently free use of the claim of privilege in relation to claims arising out of these activities, made it imperative for the courts to see to it that the scope of the privilege in such litigation should not be extended. The fact that production of the documents might prejudice the Crown's case or assist the plaintiff's did not justify the claim of privilege. "In truth", he added, "the fact that the documents, if produced might have any such effect upon the fortunes of the litigation is of itself a compelling reason for their production‑‑one only to be overborne by the gravest considerations of State policy or security" (p. 716).
29. The Board noted that a court has always had the power to inquire into the nature of the document for which protection is sought and to require some indication of the injury the State would suffer from its production. In performing this task, it added, the court may inspect the documents privately, particularly in cases where the State itself is a party. In the result, the Board concluded that the proper course there was to remit the matter to the court that heard the case with directions that it was a proper one for exercising its power to inspect the documents.
30. Eleven years later, in 1942, the House of Lords refused to follow the Robinson case in Duncan v. Cammell, Laird & Co., supra. There the submarine Thetis, which the respondents had built for the Admiralty, sank while undergoing its submergence test, and an action in negligence was brought by representatives and dependents of those who had died in the mishap. The Crown objected to the production of several documents which revealed the structural specifications of the submarine and its condition when raised. The objection having been made in proper form, the House upheld it without any inspection of the documents.
31. The case was undoubtedly correctly decided. A properly framed affidavit by a Minister of the Crown objecting to giving information about the structure of equipment intended for the defence of the country must surely be treated with the utmost deference, especially in wartime. Lord Blanesburgh in Robinson's case had noted that the documents should not be inspected where this could have the effect of itself defeating the reasons for which a privilege was claimed.
32. What puts the Duncan case at odds with its predecessor, however, was the view taken of the respective roles of the courts and of the Crown in dealing with claims for the production of state documents. In Robinson's case the court's role was given pre‑eminence. In Duncan, by contrast, the House made it clear that a ministerial objection, properly made, was conclusive. The House expressly disapproved of the order for inspection granted in Robinson's case.
33. No longer bound by English authority, this Court soon began to dissociate itself from some of the more absolute statements in Duncan's case. In R. v. Snider, [1954] S.C.R. 479, the Court, at the request of the prosecution, allowed production of, and oral evidence respecting, the income tax returns of the accused despite the objection of the Minister of National Revenue. The Court there clearly reiterated "the general principle that in a court of justice every person and every fact must be available to the execution of its supreme functions" in the absence of a public interest recognized as overriding it (see Rand J. at p. 482).
34. A similar approach was taken in Gagnon v. Commission des valeurs mobilières du Québec, [1965] S.C.R. 73. There the Attorney General of Quebec objected on the basis of public interest to the Secretary of the Commission's divulging in the course of bankruptcy proceedings a letter written to the Commission by the bankrupt regarding the business of the bankrupt, but the Court refused to uphold this objection. By this time, the English courts themselves had begun to move away from the approach adopted in Duncan's case; see Re Grosvenor Hotel, London (No. 2), [1964] 3 All E.R. 354 (C.A.) Fauteux J., who gave the judgment of the majority of this Court, referred to the latter case in concluding that the courts had the final say in deciding between the conflicting demands of the litigant and the state, or at least in determining whether a ministerial objection is well founded. He conceded that such objection would obviously be well founded in the case of military secrets, diplomatic relations, Cabinet papers and high level political decisions. But the courts' power, though it must be prudently exercised, remained nonetheless. The facts, he added, will vary from case to case; each must be determined on its own merits.
35. It was left to the House of Lords in Conway v. Rimmer, supra, in 1968, to dispose of the more excessive views in Duncan's case and to bring English law in line with that of Canada and other parts of the Commonwealth as well as that of Scotland; for the latter, see Glasgow Corporation v. Central Land Board, 1956 S.C. (H.L.) 1. In Conway, a probationary constable brought action for malicious prosecution against his former superintendent. In the course of discovery, the latter revealed relevant documents in his possession which included four reports made by the defendant during the plaintiff's probationary period and a report by him to his chief constable for transmission to the Director of Public Prosecutions in connection with the prosecution of the plaintiff on a criminal charge, on which he was acquitted and on which the civil action was based. The Secretary of State for Home Affairs objected in proper form to the production of these documents on the ground that they fell within a class of documents the production of which would be injurious to the public interest. The House of Lords held that the documents should be produced for inspection and if it was found that disclosure would not be prejudicial to the public interest or that the possibility of such prejudice was insufficient to justify their being withheld, disclosure should be ordered.
36. The House firmly rejected the notion that the Minister's statement was final and conclusive. It was the courts that must determine the balance to be struck between the public interest in the proper administration of justice and the public interest in withholding certain documents or other evidence. Proper deference should, of course, be given to the Minister's views, particularly in relation to objections to production of particular documents on the basis of their contents, or where the Minister's reasons involve considerations that cannot properly be weighed on the basis of judicial experience. But class documents are often not of this character. For example, it noted, a court is certainly able to assess whether candour in making a report would likely be lessened by the possibility of its revelation in judicial proceedings.
37. In assessing whether documents should be produced or not, the court could in some cases come to a decision one way or the other on the basis of the Minister's statement alone, but in case of doubt the judge could inspect them.
38. The public interest in the non‑disclosure of a document is not, as Thorson J.A. noted in the Court of Appeal, a Crown privilege. Rather it is more properly called a public interest immunity, one that, in the final analysis, is for the court to weigh. The court may itself raise the issue of its application, as indeed counsel may, but the most usual and appropriate way to raise it is by means of a certificate by the affidavit of a Minister or where, as in this case, a statute permits it or it is otherwise appropriate, of a senior public servant. The opinion of the Minister (or official) must be given due consideration, but its weight will vary with the nature of the public interest sought to be protected. And it must be weighed against the need of producing it in the particular case.
39. In the end, it is for the court and not the Crown to determine the issue. This was recently re‑affirmed by this Court in Smallwood v. Sparling, [1982] 2 S.C.R. 686, to which I shall return. The opposite view would go against the spirit of the legislation enacted in every jurisdiction in Canada that the Crown may be sued like any other person. More fundamentally, it would be contrary to the constitutional relationship that ought to prevail between the executive and the courts in this country.
The Affidavit
40. In making a claim of public interest immunity, the Minister (or official) should be as helpful as possible in identifying the interest sought to be protected. Examples of how this should be done appear in Burmah Oil Co. v. Bank of England, [1979] 3 All E.R. 700 (H.L.), and Goguen v. Gibson, [1983] 2 F.C. 463 (C.A.), where the Minister described with as much detail as the nature of the subject matter would allow the precise policy matters sought to be protected from disclosure.
41. Counsel for Carey argued that Dr. Stewart's affidavit is inadequate in that it does not set forth with sufficient particularity the interests sought to be protected. I suppose the point may be put in this way. Certainly the grounds advanced for protection are, as some cases have put it, somewhat amorphous and as Thorson J.A. pointed out, less helpful than they might be. Nonetheless, it seems to me that Thorson J.A. was correct in his view that in substance what was sought was the protection as a class of what he generally described as "Cabinet documents", i.e. documents prepared by government departments and agencies in formulating government policies, decisions made by Cabinet, and the like. That being so, Dr. Stewart did not see it as necessary to particularize the nature of the information sought to be protected as would be necessary if the claim for protection was based on the nature of the contents of the documents. Essentially what the certificate argues is that the process by which government policy is determined by the Executive Council must remain confidential whatever the policy may be and however much time (save when it has become of historical interest only) has elapsed since the policy was developed. I refer in confirmation to the paragraphs of Dr. Stewart's affidavit already cited.
42. So viewed, the question is not so much whether the affidavit is insufficient as whether the substance of the claim is one to which the courts should give effect. Counsel for the Government put it that the issue raised was a simple question of principle. In short, may the documents be withheld from production simply because they are Cabinet documents as above described, at least where those documents are concerned with the formulation of government policy by the Cabinet? If one replies to this broad question in the negative, it may be necessary to ask whether the documents should be withheld because of the particular policy to which they refer. In that case it would be the duty of whoever makes the affidavit to give the court all the help he reasonably can. But if the question is answered in the affirmative, that would be an end to the matter. I shall, therefore, attempt to reply to the "simple question of principle" counsel for the Government asked us to address.
Rationale for Non‑disclosure of Cabinet Documents
43. Generally speaking, a claim that a document should not be disclosed on the ground that it belongs to a certain class has little chance of success. Claims to secrecy for some classes of documents have, however, traditionally been considered valid, notable among these being documents relating to national defence or security and those regarding diplomatic relations with other countries. To some extent, though, claims regarding these documents, and particularly those dealing with defence or security, may be looked upon as akin to a "contents" claim. That, however, cannot be said of Cabinet documents which the cases have frequently considered as meriting the same type of protection as documents relating to national defence and diplomatic communications. That was done even in Conway v. Rimmer and in Gagnon v. Commission des valeurs mobilières du Québec, supra, despite the fact that the general thrust of these cases strongly favoured disclosure. Indeed in Conway's case, the impression left is that Cabinet documents should never be revealed. But it was not necessary in those cases to decide the issue and it becomes essential to analyse the reasons underlying the claim.
44. The principal argument for withholding the documents described in the affidavit is that their disclosure would lead to a decrease in completeness, in candour and in frankness of such documents if it were known that they could be produced in litigation and this in turn would detrimentally affect government policy and the public interest. The familiar "candour argument" is combined with the need of completeness and the fear that the freedom of Cabinet members to discuss matters of significant public concern and policy might be diminished. This may simply mean that the setting in which confidential statements are made may make them different in kind from others.
45. At all events, the Government's counsel in his factum put it on the following basis. The principles of joint responsibility of the members of Cabinet, and of Cabinet solidarity, are basic to Canadian constitutional law and must be maintained and preserved in the public interest. These principles, he added, would be prejudiced by disclosure of the documents and information sought to be produced in these proceedings. In Canada, the United Kingdom and elsewhere in the Commonwealth, he maintained, Cabinet documents have consistently been accorded a high degree of protection against disclosure and courts will order them inspected or produced only in the most exceptional and unusual circumstances.
46. I am prepared to attach some weight to the candour argument but it is very easy to exaggerate its importance. Basically, we all know that some business is better conducted in private, but generally I doubt if the candidness of confidential communications would be measurably affected by the off‑chance that some communication might be required to be produced for the purposes of litigation. Certainly the notion has received heavy battering in the courts.
47. The House of Lords had occasion to deal with the candour argument in Conway v. Rimmer, albeit at a lower level of government. Lord Reid dismissed it so far as it concerned routine documents like the probation and other reports in question in that case. He failed to see how such an argument could apply to such communications within a government department when similar communications within public corporations would not be so protected. Lord Morris of Borth‑Y‑Gest found the proposition that candour would be affected by the knowledge that by some remote chance a document might be the subject of possible enforced production one of "doubtful validity" (p. 957). To Lord Hodson, it seemed strange that civil servants alone are supposed to be unable to be candid without the protection denied other people (p. 976). Lord Pearce indicated that there were many circumstances where the possibility of disclosure would make the writer more candid (p. 987). And Lord Upjohn found it difficult to justify non‑disclosure of class documents simply on the basis of the candour argument when equally important matters of confidence in relation to security and personnel matters in other walks of life were not similarly protected (p. 995).
48. The same approach was adopted in later cases of which I mention only a few. In the Glasgow Corporation case, supra, at p. 20, Lord Radcliffe made the same point more colourfully by saying he would have supposed Crown servants were "made of sterner stuff". From my experience, he would not be disappointed. And I suspect Cabinet Ministers would be incensed at the suggestion that their officials were made of sterner stuff than themselves. In 1973, Lord Salmon in Rogers v. Home Secretary, [1973] A.C. 388 (H.L.), at p. 413, described the candour argument as "the old fallacy". More recently in Burmah Oil Co. v. Bank of England, supra, at p. 724, Lord Keith of Kinkel characterized the argument as "grotesque".
49. In both the Gagnon and Conway cases, however, Cabinet documents were looked upon in a different light than lower level official documents, and in the latter case the Law Lords dealt with the issue at some length. Most of them looked at these, we saw, as requiring a similar degree of protection as documents relating to national security and diplomatic relations. Production of Cabinet correspondence, they asserted, would never be ordered. For them this was simply obvious. Given the general attitude at the time, this is not surprising. The best explanation is that of Lord Reid. For him it was not candour but the political repercussions that might result if Cabinet minutes and the like were disclosed before such time as they were of historical interest only. He put it this way at p. 952:
I do not doubt that there are certain classes of documents which ought not to be disclosed whatever their content may be. Virtually everyone agrees that Cabinet minutes and the like ought not to be disclosed until such time as they are only of historical interest. But I do not think that many people would give as the reason that premature disclosure would prevent candour in the Cabinet. To my mind the most important reason is that such disclosure would create or fan ill‑informed or captious public or political criticism. The business of government is difficult enough as it is, and no government could contemplate with equanimity the inner workings of the government machine being exposed to the gaze of those ready to criticise without adequate knowledge of the background and perhaps with some axe to grind. And that must, in my view, also apply to all documents concerned with policy making within departments including, it may be, minutes and the like by quite junior officials and correspondence with outside bodies. Further it may be that deliberations about a particular case require protection as much as deliberations about policy. I do not think that it is possible to limit such documents by any definition.
50. While some of these remarks may seem somewhat dated, I would agree that the business of government is sufficiently difficult that those charged with the responsibility for running the country should not be put in a position where they might be subject to harassment making Cabinet government unmanageable. What I would quarrel with is the absolute character of the protection accorded their deliberations or policy formulation without regard to subject matter, to whether they are contemporary or no longer of public interest, or to the importance of their revelation for the purpose of litigation. Subsequent cases have addressed these issues.
The Decline of Absolute Protection
51. The idea that Cabinet documents should be absolutely protected from disclosure has in recent years shown considerable signs of erosion. This development began in the United States in the famous case of United States v. Nixon, 418 U.S. 683 (1974), where a subpoena was directed to the former President of that country to produce tape recordings and documents relating to certain conversations and meetings between him and others. The President, claiming executive privilege, filed a motion to have the subpoena quashed, but the Supreme Court of the United States, affirming the courts below, rejected the President's claim.
52. While there are important differences between the governmental structure of the United States and that of this country, the underlying values concerned are much the same. Consistent with the law in this country, the Court observed that, while it would accord great deference to presidential views, the judiciary, not the President, was the final arbiter of a claim of privilege. In doing this, a court was bound to weigh the conflicting interests.
53. The Court recognized the need to protect communications between high government officials. It gave some weight to the candour argument, but it also noted the importance of protecting the President from being harassed by vexatious and unnecessary subpoenas.
54. On the other hand, the need for confidentiality in government, the court thought, must be weighed against the historic commitment to the rule of law. The integrity of the judicial system and public confidence in it depended on full disclosure of all facts within the framework of the rules of evidence, particularly in criminal matters.
55. In weighing the competing interests, the Court took account of the fact that the claim to confidentiality was general in nature. It could not be concluded that presidential advisors would be moved to temper their candour by the infrequent occasions of disclosure in judicial proceedings. By contrast, the production of evidence in criminal proceedings was specific and central to the fair adjudication of a particular case.
56. The Court also took into account that the claim, as in the case here, was made solely on the basis that confidentiality was required to secure the decision‑making process generally, not to protect the revelation of any particular action or policy.
57. In the United Kingdom, the erosion of the notion of absolute protection of Cabinet documents from disclosure began the following year with the case of Attorney‑General v. Jonathan Cape Ltd., [1975] 3 All E.R. 484. Mr. R.H.S. Crossman, who had been a Cabinet Minister from 1964 to 1970, had throughout that period kept diaries with a view to writing his memoirs for the purposes of publication. The memoirs contained details of Cabinet discussions and disclosed differences between Cabinet Ministers on particular issues. After Mr. Crossman's death, the defendants, a book publisher and a newspaper, by arrangement with his literary executors, proposed to publish the memoirs. However, objection was made to their publication by the Secretary of the Cabinet, and the Attorney General sought to obtain two permanent injunctions restraining their publication.
58. The Attorney General contended that all papers, discussions and proceedings of Cabinet were confidential and the court should restrain their disclosure. The basis of that contention was that the confidential character of those materials derived from the convention of joint Cabinet responsibility whereby any policy decision reached by the Cabinet had to be supported thereafter by all its members whether they approved of it or not, unless they felt compelled to resign. Accordingly Cabinet proceedings could not be referred to outside the Cabinet in such a way as to disclose the attitude of individuals in arguments preceding a decision because this would inhibit free and open discussion in the Cabinet in the future. The Attorney General also contended that advice tendered to Ministers by civil servants and personal observations made by Ministers regarding their capacity and suitability were also confidential and could equally be restrained by the court.
59. Lord Widgery C.J. agreed that the views expressed by Ministers in Cabinet are confidential and their disclosure may be restrained where this is clearly necessary in the public interest. He also accepted that the maintenance of the doctrine of joint responsibility within the Cabinet is in the public interest. However, the precise degree of confidentiality pertaining to Cabinet discussion, he found, was not entirely clear. There was no question that a court would restrain a person from disclosing information that affected national security or in other extreme cases. But the Attorney General faced serious difficulties in relying on the public interest in non‑disclosure generally. While the application of the doctrine of joint responsibility might be prejudiced by premature disclosure of views, there must, Lord Widgery C.J. stated, be some time after which the confidential character of the information, and the duty of the court to restrain publication, would lapse. The precise point at which material loses its confidentiality may be extremely difficult to determine in a particular case. However, he rejected the suggestion that there should be an arbitrary period of thirty years. Rather he put the matter simply in this way at p. 496.
The question for the court is whether it is shown that publication now might damage the doctrine notwithstanding that much of the action is up to 10 years old and three general elections have been held meanwhile.
He concluded that it would not.
60. There is a difference, however, between refusing to restrain disclosure and compelling disclosure and it is interesting that Lord Widgery C.J. thought it quite clear that no court would compel the production of Cabinet papers in the course of discovery in an action. As in Conway v. Rimmer, however, the question was not before the Court. Indeed, up to that time so far as I am aware, the only case in which that view was ever acted upon was in Lanyon Pty. Ltd. v. Commonwealth of Australia (1974), 129 C.L.R. 650, where Menzies J. of the High Court of Australia held in an action of compensation for land that Cabinet documents related to the matter should not be disclosed in the public interest.
61. It was in Australia, however, that the next stage of development took place. In Sankey v. Whitlam (1978), 21 A.L.R. 505 (H.C.), a private prosecutor had laid an information alleging that Mr. Whitlam, the former Prime Minister, and three former Cabinet colleagues had committed an offence against s. 86 of the Crimes Act and had been involved in a conspiracy at common law. The charges arose out of activities taken while the accused had been members of the Australian Cabinet.
62. In the course of the proceedings, a number of subpoenae duces tecum were issued on behalf of the prosecutor seeking production of various documents, including Cabinet documents, and communications between Ministers and departments and others. The Commonwealth objected to the production of some of these documents on the ground that disclosure would impede the proper functioning of the executive branch of government and the public service. As here, the objection was made not on the basis that disclosure of the contents would harm the national interest, but on the basis of the class to which they belonged. The magistrate upheld the objection and refused to order production of the documents. The prosecutor then brought an action for declarations that the documents be produced. The case was ultimately heard by the High Court of Australia which concluded that the documents should be produced.
63. The principal judgment, delivered by Gibbs A.C.J., is a veritable textbook on the subject. Dealing with the arguments traditionally advanced for non‑disclosure of Cabinet documents, he noted that while some judges find the candour argument unconvincing, he did not find it altogether unreal that in some matters at least communications between Ministers and public servants might be more frank and candid if those concerned believed they were protected from disclosure. However, he did not think this consideration was sufficient to justify a grant of complete immunity from disclosure. Similarly, referring to the statement of Lord Reid above cited, he thought it was inherent in the nature of things that government at a high level cannot function without some degree of secrecy. But here again he did not think the public interest required that all high level government documents should be protected from disclosure irrespective of their subject matter. Consistently with these views, Stephen J. noted that there were no static rules for classifying one class of documents as being immune from disclosure; it was simply one of the variables to take into account in balancing the relevant public interests.
64. Nor, the Court thought, should protection from disclosure last forever. The length of time the immunity should last would depend on the subject matter. The statement in Conway v. Rimmer that Cabinet documents should not be disclosed at least until they become of historical interest only was out of keeping with the principle enunciated in that case, namely, that documents should be withheld from disclosure only, and to the extent, that the public interest renders it necessary. The matters with which the documents in that case dealt with had occurred over three years before and were no longer of continuing significance.
65. Gibbs A.C.J. made another significant point. He underlined that "a rule of evidence designed to serve the public interest" should not "become a shield to protect wrongdoing by ministers in the execution of their office" (p. 532). Stephen J. elaborated on this issue. In some cases, he observed, it is important that disclosure be given to support the very purpose that non‑disclosure is intended to support, i.e., the proper functioning of government. In that case, the charge of misbehaviour in the conduct of government operations made it important in the public interest that the documents be revealed.
66. The general flavour of the case may be rendered by the following remarks of Stephen J. at p. 534, with which I am in complete agreement:
On the one hand, a measure of secrecy must surround at least some aspects of what has been called the counsels of the Crown; the Executive Government of the Commonwealth should, in those cases where real need arises, be able to preserve the confidentiality both of information which it possesses and of advice which it receives. On the other hand, in civil and criminal cases alike, the course of justice must not be unnecessarily impeded by claims to secrecy and those who, with the Governor‑General, exercise the executive power of the Commonwealth, Ministers of the Crown acting in exercise of their offices, should, in common with those officers of the public service of the Commonwealth who advise them, be as amenable to the general law of the land as are ordinary citizens.
67. Though the Whitlam case involved a criminal prosecution, the Court, as the last quotation reveals, saw no difference in principle between criminal and civil cases. The following year, the House of Lords in Burmah Oil Co. v. Bank of England, supra, also concluded that a court, in certain circumstances, might order the production of high level government documents‑‑high level in that they were concerned with the formulating of government policy and that they involved the inner workings of the government. It was, as well, a civil case, one moreover that did not involve "special circumstances" such as criminal activities or other improprieties described by the Divisional Court. On the basis of this case, then, the Court of Appeal in the present case was quite right in rejecting the concept of special circumstances.
68. In the Burmah Oil case, Burmah Oil sued the Bank alleging that a sale of certain shares to the Bank should be set aside as an unconscionable transaction. Negotiations between the company and the Bank, which acted pursuant to government policy, were made at a time when Burmah Oil was in serious financial difficulties. Various documents disclosing the government's role in the transaction appeared on the Bank's list of documents in the litigation. At the request of the Crown, the Bank objected to discovery of a number of these documents. A certificate by the Chief Secretary to the Treasury claimed privilege on the ground that he had concluded that the production of the documents would be injurious to the public interest because it was necessary to the proper functioning of the public service that they be withheld. The documents included high level ministerial papers relating to government policy (i.e. memoranda of meetings attended by Ministers) and inter‑ departmental communications between senior government officials. The documents were said to belong to a class relating to the formulation of government policy on important economic and financial matters.
69. Unlike the situation in the present case, the certificate was not "amorphous", but specific and motivated. The Minister had not contented himself with a claim of a blanket character that such documents should not be revealed in the public interest. Rather, he had fully set forth why they should be withheld, namely, that they concerned discussions at a very high level of specific government policies, policies identified as being of the highest national and political importance. The case, therefore, involved circumstances of far greater sensitivity than those in the present case.
70. All the Law Lords were agreed that there was no rule of law that a claim of immunity from production of Cabinet documents was conclusive. Whether the documents should be revealed or not was a question for the court.
71. Sankey v. Whitlam, supra, was cited with approval. A majority thought (Lord Wilberforce dissenting) that the action was not concerned with the policy reasons for rescuing Burmah Oil but with an alleged unconscionable transaction taken within the confines of that policy. The majority also concluded that a reasonably probable case had been made out that the documents contained material relevant to issues in the action. That being so, the court had a discretion to review the Crown's claim of privilege. In doing so, it had to balance the competing interests of preventing harm to the public service against the public interest in the administration of justice, and could inspect the documents privately to determine where the balance of interest lay. Having inspected them, however, the Law Lords concluded that the documents did not contain material necessary for disposing fairly of the case and therefore upheld the Crown's objection to their disclosure.
72. It is obvious that Lord Wilberforce accepted the newer approach with reluctance, but the majority was more favourably disposed towards disclosure for a variety of reasons. Lord Edmund‑Davies, for example, underlined that the party objecting to disclosure was "not a wholly detached observer of events"; the government, he noted, had "a very real and lively interest" in the result of the proceedings (p. 720). Lord Keith of Kinkel emphasized that the whole context must be examined. In particular, he observed, "Details of an affair which is stale and no longer of topical significance might be capable of disclosure without risk of damage to the public interest" (p. 725); see also Lord Scarman, at p. 733. Lord Keith also noted the significance of the modern trend to more open government. While it is for Parliament to determine how far this trend should go, it is not a matter of indifference to the courts. As he put it at p. 725:
There can be discerned in modern times a trend towards more open governmental methods than were prevalent in the past. No doubt it is for Parliament and not for courts of law to say how far that trend should go. The courts are, however, concerned with the consideration that it is in the public interest that justice should be done and should be publicly recognised as having been done. This may demand, though no doubt only in a very limited number of cases, that the inner workings of government should be exposed to public gaze, and there may be some who would regard this as likely to lead, not to captious or ill‑informed criticism, but to criticism calculated to improve the nature of that working as affecting the individual citizen.
73. Lord Scarman eloquently set forth the need for disclosure and distinguished between objections on the basis of class and content at p. 733:
A Cabinet minute, it is said, must be withheld from production. Documents relating to the formulation of policy at a high level are also to be withheld. But is the secrecy of the `inner workings of the government machine' so vital a public interest that it must prevail over even the most imperative demands of justice? If the contents of a document concern the national safety, affect diplomatic relations or relate to some state secret of high importance, I can understand an affirmative answer. But if they do not (and it is not claimed in this case that they do), what is so important about secret government that it must be protected even at the price of injustice in our courts?
(Emphasis added.)
74. Once again English judicial attitude was adapted to conform with more liberal developments in other parts of the Commonwealth. In this approach, it was soon joined by the New Zealand Court of Appeal in Environmental Defence Society Inc. v. South Pacific Aluminium Ltd., [1981] 1 N.Z.L.R. 146.
75. In Canada, however, the former attitude prevailed until the early 1980s. Until then, dicta can be found in several appeal courts to the effect that Cabinet documents are not open to disclosure until they become of historical interest; see R. and Vanguard Hutterian Brethren Inc. (1979), 97 D.L.R. (3d) 86 (Sask. C.A.); Smerchanski v. Lewis, supra. R. in Right of Alberta v. Mannix, [1981] 5 W.W.R. 343 (Alta. C.A.) showed somewhat more openness, but it was not until Gloucester Properties Ltd. v. R. (1981), 24 C.P.C. 82 that the new trend was adopted in a Canadian court. There Nemetz C.J., speaking for the British Columbia Court of Appeal, accepted the view that Cabinet minutes and discussions are not subject to absolute privilege. The claim of privilege, he stated, will prevail only when it is necessary in the public interest. In words reminiscent of those expressed by Fauteux J. in Gagnon v. Commission des valeurs mobilières du Québec, supra, he noted that the court will weigh the facts in each particular case to determine whether the public interest in the administration of justice should prevail over the public interest in non‑disclosure.
76. This Court had occasion to deal with the matter the following year in Smallwood v. Sparling, supra. Sparling was appointed under the Canada Corporations Act to conduct an investigation for the Restrictive Trade Practices Commission into the management of Canadian Javelin Ltd. A subpoena was issued to Mr. Smallwood, the former Premier of Newfoundland, to give evidence and to bring forth certain particularized documents. Mr. Smallwood then applied for an injunction enjoining Sparling and others from acting upon the subpoena. In support of his application, it was asserted that at the relevant times he had acted solely as Premier, and that any testimony he would be called upon to give or any documents he would be called upon to produce were subject to public interest immunity.
77. This Court, however, decided against the granting of the injunction. In dealing with these issues, Wilson J., who delivered the judgment, first noted that while a former Minister may, in some circumstances, claim public interest immunity with respect to specific oral or documentary evidence, he cannot claim complete immunity. In her review of the cases, she emphasized Rand J.'s statement in R. v. Snider, supra, that the general principle was that all facts must be available to the court in the absence of an overriding public interest. Conway v. Rimmer, she added, later adopted the view that state documents enjoyed only relative immunity and could in appropriate circumstances be divulged. She noted, however, that some comments in that case indicated that Cabinet documents could not be disclosed until they were of historical interest. In her view, however, the more recent Burmah Oil case did not appear to be based on any absolute principle of public immunity. That case, Wilson J. concluded, indicated that "it is the role of the courts, not the administration to determine whether disclosure of documents would be injurious to the public interest" (p. 704). The same principle applied to oral evidence.
78. In rejecting Mr. Smallwood's claim to immunity on the basis of the doctrine of collective Cabinet responsibility, Wilson J. underlined that in Attorney‑General v. Jonathan Cape Ltd., supra, Lord Widgery C.J. had made it clear that there was a time limit on the application of the doctrine. Indeed after a careful examination of the case, she concluded at p. 707 that:
...the onus would be on Mr. Smallwood to establish that the public interest in joint cabinet responsibility would be prejudiced by any particular disclosure he was being asked to make. Any blanket claim to immunity on this basis must, in my view, also fail.
Later, at p. 708, she added:
His immunity in that regard is relative only and must wait upon the content of the proposed examination. Mr. Smallwood cannot be the arbiter of his own immunity. This is for the courts. The application in this respect was therefore premature.
Summary and Application of the Principles
79. The foregoing authorities, and particularly, the Smallwood case, are in my view, determinative of many of the issues in this case. That case determines that Cabinet documents like other evidence must be disclosed unless such disclosure would interfere with the public interest. The fact that such documents concern the decision‑making process at the highest level of government cannot, however, be ignored. Courts must proceed with caution in having them produced. But the level of the decision‑making process concerned is only one of many variables to be taken into account. The nature of the policy concerned and the particular contents of the documents are, I would have thought, even more important. So far as the protection of the decision‑making process is concerned, too, the time when a document or information is to be revealed is an extremely important factor. Revelations of Cabinet discussion and planning at the developmental stage or other circumstances when there is keen public interest in the subject matter might seriously inhibit the proper functioning of Cabinet government, but this can scarcely be the case when low level policy that has long become of little public interest is involved.
80. To these considerations, and they are not all, one must, of course, add the importance of producing the documents in the interests of the administration of justice. On the latter question, such issues as the importance of the case and the need or desirability of producing the documents to ensure that it can be adequately and fairly presented are factors to be placed in the balance. In doing this, it is well to remember that only the particular facts relating to the case are revealed. This is not a serious departure from the general regime of secrecy that surrounds high level government decisions.
81. I would repeat that no claim is made here on the basis of the nature of the policy discussed in the documents. If the certificate had particularized that their divulgence should be withheld on the ground, for example, that they relate or would affect such matters as national security or diplomatic relations, that would be another matter. If the certificate was properly framed, the court might in such a case well agree to their being withheld even without inspection; see in this context Goguen v. Gibson, supra. For on such issues, it is often unwise even for members of the judiciary to be aware of their contents, and the period in which they should remain secret may be very long.
82. 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 functioning 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 undoubtedly is of some importance, but it is hardly world‑shaking. Apart from this, are we really dealing with the formulation of policy on a broad basis, or are we simply concerned with a transaction made in the implementation of that policy? Such a distinction was accepted by a majority of the House of Lords in Burmah Oil in relation to far more sensitive policy issues, i.e. major financial and economic policies of the nation. Policy and implementation may well be intertwined but a court is empowered to reveal only so much of the relevant documents as it feels it is necessary or expedient to do following an inspection.
83. I turn now to the length of time since the transaction in question occurred. Recent cases make clear that if Cabinet documents may be given protection as a class, that protection need not be continued until they are only of historical interest. Rather, these cases indicate that the period of protection solely for preserving the confidentiality of the government decision‑making process will be relatively short. While it may be true as the Court of Appeal states that the government policy concerned‑‑the tourist and recreational industry in northwestern Ontario‑‑may still be ongoing, I find it difficult to accept its conclusion that the advice given and decisions taken respecting the transaction involved in this case have not so lost their immediacy that a court must concern itself about them. We are talking about a transaction that took place over twelve years ago in connection with what by any measure can scarcely be regarded as high level government policy. To advert to the remarks of Lord Widgery C.J. in the Jonathan Cape case, several provincial elections have taken place since that time, and governments have come and gone. In the Burmah Oil case, the Court inspected the documents though the transaction concerned far more sensitive policy and had taken place three or four years before; see also the Whitlam, Nixon and Smallwood cases. Assuming there were matters respecting the transaction that could, even feebly, affect present policy, a court could, on weighing the competing interests, simply refrain from having these matters divulged.
84. There is a further matter that militates in favour of disclosure of the documents in the present case. The appellant here alleges unconscionable behaviour on the part of the government. As I see it, it is important that this question be aired not only in the inerests of the administration of justice but also for the purpose for which it is sought to withhold the documents, namely, the proper functioning of the executive branch of government. For if there has been harsh or improper conduct in the dealings of the executive with the citizen, it ought to be revealed. The purpose of secrecy in government is to promote its proper functioning, not to facilitate improper conduct by the government. This has been stated in relation to criminal accusations in Whitlam, and while the present case is of a civil nature, it is one where the behaviour of the government is alleged to have been tainted.
85. Divulgence is all the more important in our day when more open government is sought by the public. It serves to reinforce the faith of the citizen in his governmental institutions. This has important implications for the administration of justice, which is of prime concern to the courts. As Lord Keith of Kinkel noted in the Burmah Oil case, supra, at p. 725, it has a bearing on the perception of the litigant and the public on whether justice has been done.
Inspection
86. I would, therefore, order disclosure of the documents for the court's inspection. This will permit the court to make certain that no disclosure is made that unnecessarily interferes with confidential government communications. Given the deference owing to the executive branch of government, Cabinet documents ought not to be disclosed without a preliminary judicial inspection to balance the competing interests of government confidentiality and the proper administration of justice.
87. The Court of Appeal refused to inspect the documents not so much for the reasons I have described earlier, but because it felt that even before it could inspect the documents, there must be some concrete ground for belief, something beyond speculation, that the documents are likely to provide evidence of facts or a state of affairs which, if the documents were produced, would substantially assist the party seeking their production. That consideration was all the more important, it thought, were there was reason to believe these facts or state of affairs are likely to be capable of proof by some other means.
88. There is no doubt authority for this approach in recent English cases. In Burmah Oil Co. v. Bank of England, supra, the House of Lords, we saw, inspected Cabinet documents with a view to balancing the competing interests involved, but that was on the ground that it was reasonably probable or likely (Lord Wilberforce would have required a strong positive case) that the documents contained matter that was material to the issues arising in the case.
89. It is by no means clear from the judgment that the expressions "reasonably probable" or "likely" were used as a test or reflected the state of facts in that case. Indeed in the Smallwood case, at p. 703, Wilson J. interpreted the Burmah Oil case as holding that "when a claim of privilege is made in respect of documents which are prima facie relevant to the issues before the court, the court must review the documents in order to balance the competing interests" already described.
90. The law in England was considerably clarified by the subsequent case of Air Canada v. Secretary of State for Trade (1983), 2 W.L.R. 494 (H.L.) There the British Airport Authority fixes the charges airlines have to pay for using airports. The Authority embarked on a programme of improvements which it had intended to finance out of its reserves and from borrowing. However, the Secretary of State for Trade, who had certain statutory powers over the Authority, ordered it to finance these improvements out of revenue. In consequence, the Authority imposed a 35 per cent increase on the charges at Heathrow Airport. Air Canada and other airlines then brought suit against the Authority and the Secretary of State claiming that the Secretary had acted unlawfully and that the charges were excessive and unlawful.
91. The airlines alleged that the Secretary's power was confined to the purpose of the Act concerned, whereas the dominant purpose for which he acted was to reduce public sector borrowings. So, they concluded, his directions were unlawful. They did not allege that his motives were different from those expressed in a White Paper and in a statement made by the Secretary in the House of Commons. But the airlines were not content to rely on the latter information; they sought production of a number of high level ministerial documents relating to the formulation of government policy and to interdepartmental communications between senior civil servants. The Secretary claimed public interest immunity against disclosing these documents.
92. The trial judge held that the court's concern was to elicit the truth whether it favoured one side or the other, and that the documents were necessary for the due administration of justice if they substantially assisted the court in determining the facts upon which its decision depended. This involved the interpretation to be given to Order 24, r. 13(1) of the English Rules of Court which provided that no order for the production of any documents for inspection or to the court shall be made unless the court is of the opinion that the order is "necessary either for disposing fairly of the cause or matter or for saving costs". Being inclined to think the high level ministerial documents were relevant for the purpose, the trial judge decided to inspect them, but stayed the order pending appeal.
93. The Court of Appeal allowed the appeal and its decision was upheld by the House of Lords. Three of the Law Lords (Lord Fraser of Tullybelton, Lord Wilberforce and Lord Edmund‑Davies) were of the view that to permit documents to be inspected for the purpose of considering whether they should be produced under Order 24, r. 13(1), it was necessary for the person seeking their production to establish that they would give substantial support to the contention of the party seeking disclosure. Unless this were established, the court should not even inspect the documents. In their view, the party seeking production must first establish that they would be of assistance in establishing the plaintiff's case. Only if this had been done would the court inspect the documents to weigh the competing interests. This approach was adopted by the Court of Appeal in the present case.
94. It should be mentioned, however, that in the Air Canada case two of the Law Lords (Lord Scarman and Lord Templeman) were of the view that it was sufficient if the documents might assist any of the parties to the proceeding. They adopted the view of the trial judge that "documents are necessary for fairly disposing of a cause or for the due administration of justice if they give substantial assistance to the court in determining the facts upon which the decision in the cause will depend"; see Lord Scarman, at p. 535.
95. It should also be underlined that it was not solely for these reasons that the Law Lords refused to inspect the documents, let alone have them disclosed. They were all of the view that any relevant information that might be gleaned from them had already been publicly revealed in the White Paper and the Secretary's statement mentioned earlier. Accordingly, their production was not, in the words of Order 24, r. 13(1) "necessary either for disposing fairly of the cause or matter or for saving costs". Lord Scarman made it clear that it was "for this reason, but for no other" that he would hold that the trial judge was wrong to decide to inspect the documents (p. 535).
96. What was involved in the Burmah Oil and Air Canada cases, therefore, was the question of how, in the particular circumstances of those cases, the court should exercise its discretion under an English Rule of Court in the context of the general practice in English courts, a rule the appellant maintains has no equivalent in this country. Before delving further into this matter, however, it is important that one look at precisely what the Court of Appeal did in the present case.
97. The approach of the Court of Appeal was as follows. Carey, it stated, failed to make the case he had to make in order to succeed. The Crown's objection to having the documents disclosed was based on a ground of a public interest which the law recognizes as sufficient to make a prima facie case for their protection. The burden of persuasion, therefore, was on the plaintiff to make the case to the contrary in accordance with the rules that govern how that is to be done. Central to Carey's claim, it stated, is his allegation that the Crown breached several agreements, which agreements could be established if the Cabinet documents in question were produced. However, the Court went on to say that to the extent that the agreements were later reduced to writing, they should be readily capable of being proved at trial. To the extent that they were not reduced to writing, their existence could be proved by calling witnesses. Counsel did not assert or lead the Court to believe these witnesses were unavailable.
98. In a word, the Court stated, no case was made that the existence of and terms of the agreements are unlikely to be capable of proof by other means. All the submissions on behalf of Carey came down to, it concluded, is that the documents are relevant to his case and that, accordingly, they either could or might assist him. This was no more than "a bare unsupported assertion ... that something to help him may be found" in the documents; Carey's case stopped far short of showing "some concrete ground for belief" which would take the case beyond mere speculation.
99.
What troubles me about this approach is that it puts on a plaintiff burden of proving how the documents, which are admittedly relevant, can be of assistance. How can he do that? He has never seen them; they are confidential and so unavailable. To some extent, then, what the documents contain must be a matter of speculation. But they deal with precisely the subject matter of the action and what one party was doing in relation to the relevant transactions at the time.
100. It may well be that witnesses could establish what the contract was but there are always questions of precise recall and of credibility. Besides, in an evolving arrangement like the one alleged there is no substitute for written documents in determining precisely what was going on, and what the parties had in mind. In particular, in the present case the Court failed to observe that the plaintiff was not only alleging breach of an agreement, but that the transfer of the lodge under the circumstances constituted an unconscionable transaction, the determination of which could surely be assisted by an examination of the document.
101. The method of approach adopted by the Court of Appeal appears to de diametrically opposed to that implicit in Wilson J.'s, remark in Smallwood, supra, p. 703, cited earlier, regarding the Burmah Oil case. But even if one were to adopt the most stringent English view regarding the production of documents, which appears to have found favour with the Court of Appeal, I cannot help concluding that the documents are likely (though one cannot really tell without inspecting them) to assist Carey's case. The whole of the surrounding circumstances is, I think, sufficient to give a "concrete ground" for that view. I cannot agree that under the known circumstances the attempt to obtain disclosure can be categorized as a mere "fishing expedition".
102. It is instructive to examine more closely the observations on the point made by the Law Lords in the Burmah Oil case. It was the surrounding circumstances that persuaded the House to examine the documents in that case; see for example Lord Keith of Kinkel, at pp. 722‑23. As Lord Scarman noted, "common sense must be allowed to creep into the picture" (p. 731). As in this case, the House at the time it heard the case was, in Lord Edmund‑Davies' words at p. 720, "completely in the dark as to the cogency" of the documents. He added that "No judge can profitably embark on such [public interest] balancing exercise without himself seeing the disputed documents" (p. 721), a view shared by Lord Scarman (p. 731).
103. The Burmah Oil case bears a considerable resemblance to this case at least in so far as it alleged that the transaction was an unconscionable one, one forced on the plaintiff by undue pressure of the other party. That issue, as the majority in the Burmah Oil case noted, cannot be treated entirely objectively. On this issue, it seems to me, the remarks of Lord Scarman at p. 731 are compelling:
Burmah's case is not merely that the Bank exerted pressure: it is that the Bank acted unreasonably, abusing its power and taking an unconscionable advantage of the weakness of Burmah. On these questions the withheld documents may be very revealing. This is not `pure speculation'. The government was creating the pressure; the Bank was exerting it on the government's instructions. Is a court to assume that such documents will not assist towards an understanding of the nature of the pressure exerted? The assumption seems to me as unreal as the proverbial folly of attempting to understand Hamlet without reference to his position as the Prince of Denmark.
104. I might also observe that there was evidence in that case, apart from the documents sought to be discovered, that went some considerable way towards establishing that the transaction was unconscionable. The fact that there may be other evidence in the present case to prove the existence and terms of the transaction and the surrounding circumstances is no reason for refusing to produce, let alone inspect, the documents. This case is entirely different from the Air Canada case where the sole reason for seeking the production of the documents was to establish the motive of the Secretary of State in instructing the Airport Authority, a motive already fully revealed in a White Paper and a statement of the Secretary in the House of Commons. Under these circumstances the Law Lords concluded that it was improbable that the documents whose production was sought contained anything that had not already been published and were, therefore, unlikely to be of assistance to the Court.
105. I should add that I much prefer the approach of Lord Scarman and Lord Templeman in the Air Canada case that the court may under R.S.C. Order 24, r. 13, inspect the document and, if not found to be outbalanced on the basis of some public interest, produced not only when this is likely to assist the plaintiff's case or damage the defendant's, but also where it may assist any of the parties to the proceedings. Disclosure may as they indicate be necessary for a fair determination of the issues and for saving costs even when it does not directly assist the plaintiff's case; see for example Lord Scarman at p. 535.
106. Indeed, I do not think the rule, if it existed in this country, would require the rigorous approach adopted in England. Its language is not compelling and, even in England, a more relaxed practice is adopted when questions of confidentiality are not raised. It seems to me that in a claim of public interest immunity which, like the present, seems doubtful, the court should feel free to examine the documents. There has, for a long period now, been a far more open and flexible attitude towards discovery in this country than in England. I think deciding the issue on a bare prima facie case of a public interest in non‑disclosure, such as the Court of Appeal did here, is out of place in Canadian practice. Lord Scarman referred with approval to the trend towards inspection and disclosure in the United States and in the Commonwealth generally as well as under Scottish law. Besides, counsel did not refer us to any rule in Ontario similar to R.S.C. Order 24, r. 13. The practice in the province is governed by rules having a quite independent base; for its genesis, see Williston and Rolls, The Law of Civil Procedure (1970), vol. 2, pp. 745‑51, 780‑81, 805‑06. The different legislative base requires, as Le Dain J. in speaking on the regime under Canada Evidence Act pointed out in Goguen v. Gibson, supra, at p. 472, that the Air Canada case "be treated with caution".
107. The approach that, in my view, should be followed may be exemplified by a recent case in New Zealand, Fletcher Timber Ltd. v. Attorney‑ General, [1984] 1 N.Z.L.R. 290 (C.A.), where there is also no provision like Order 24, r. 13. There a judge refused to order the production and inspection of documents in an action for breach of a timber cutting agreement, or alternatively, for damages in tort resulting from negligent misrepresentation. The documents concerned included Cabinet documents and the Ministry of Forests raised a claim against their production on the ground of public interest immunity. On appeal, the Court, in the exercise of its discretion, ordered their inspection.
108. I shall largely confine myself to the remarks of Woodhouse P. with whom the other judges were in substantial agreement. He referred to the different procedural environment that existed in England under which, he stated, the same test had to be used when the judge was asked to examine documents privately in order to resolve whether they should be made available to the applicant. He wryly added: "To describe the conclusion in another way, the condition upon which the discretion to make an order will arise has been brought forward to qualify what might be the only profitable way of deciding how the discretion could be correctly exercised" (p. 294). Whatever might be the situation in England, he held, this was not the law in New Zealand. At page 295, he made the following statement with which I am in total agreement:
If the balance of public interest can be seen to support the claim of immunity without prior inspection by the Judge then the consequential decision against production will be made without further ado. In that regard the certificate itself should demonstrate with sufficient particularity what is the nature and the significance of the documents both in terms of any need to preserve their confidentiality on the one hand and for the actual litigation on the other. But where this is not the position, where the Judge has been left uncertain, it is difficult to understand how his own inspection could affect in any way the confidentiality which might deserve protection. And in that situation I think it would be wrong to put aside such a direct and practical means of resolving the difficulty. Indeed if it were to happen the primary responsibility of the Courts to provide informed and just answers would often depend on processes of sheer speculation, leaving the Judge himself grasping at air. That cannot be sensible nor is it necessary when by the simple act of judicial reconnaissance a reasonably confident decision could be given one way or the other.
See also Richardson J., especially at pp. 301‑02 and McMullin J., especially at pp. 307‑08. These judges make it clear, in McMullin J.'s words at p. 308, that:
... once the documents are admitted to relate to the case, as they are here, they should be available for inspection unless there is some reason shown why in the interests of public policy that course should not be followed. And the onus of establishing that they should not be produced for inspection must lie on the party which seeks a departure from the general rule.
109. I am, therefore, of the view that the documents to be produced should be inspected by the trial judge to determine whether, on balancing the competing interests already described, they should be produced.
Conclusion
110. For these reasons, I would allow the appeal with costs throughout and I would also set aside the order of the Honourable Mr. Justice Catzman dated July 9, 1982 quashing the subpoena duces tecum directed to Dr. E. E. Stewart.
Appeal allowed with costs.
Solicitors for the appellant: Fraser & Beatty, Toronto.
Solicitor for the respondents: Archie Campbell, Toronto.