A-616-83
Maurice Goguen and Gilbert Albert (Appellants)
v.
Frederick Edward Gibson (Respondent)
Court of Appeal, Ryan, Le Dain and Marceau
JJ.—Ottawa, October 31 and November 1, 2, 3, 4
and 7, 1983; January 10, 1984.
Evidence — Objection to disclosure under Canada Evidence
Act, s. 36.1(1) — Records of R.C.M.P. Security Service —
Disclosure sought by persons charged with conspiring to break,
enter and commit theft — Theft of Parti québécois tapes of
membership list by R.C.M.P. — Defence requiring records to
prove entry authorized for investigation of foreign intervention
and terrorist infiltration of separatist movement — Right to
full answer and defence — Credibility — Chief Justice
upholding objection on s. 36.1(2) application without examin
ing records — Inspection matter of discretion — Undertaken
only when necessary — No inspection where it could not
change view public interest in non-disclosure outweighing
public interest in disclosure — Court having power to order
partial disclosure subject to conditions that would prevent
injury to national security — Disclosure of information likely
to injure national security and international relations —
Importance of disclosure to defence of criminal charges out
weighed — Appeal dismissed — Canada Evidence Act, R.S.C.
1970, c. E-10 (as am. by S.C. 1980-81-82-83, c. 111, s. 4), ss.
36.1, 36.2, 36.3 — Criminal Code, R.S.C. 1970, c. C-34, s. 283
— Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 41 (as
am. by S.C. 1980-81-82-83, c. 111, s. 3) — R.S.C., Ord. 24, r.
13 (Eng.).
This is an appeal from the judgment of Thurlow C.J. report
ed at [1983] 1 F.C. 872. The appellants, who were R.C.M.P.
officers, were committed for trial on charges of breaking and
entering and committing theft, and of conspiring to do so.
These charges related to the appellants' involvement in "Opera-
tion Ham", an operation of the R.C.M.P.'s Security Service in
which premises were surreptitiously entered and computer
tapes recording the membership list of the Parti québécois were
removed. The appellants did not deny their participation in the
Operation; however, they planned to argue, in their defence,
that the taking of the tapes did not constitute "theft" as defined
in the Criminal Code, because it was not done fraudulently and
without colour of right. The appellants anticipated that, in
trying to establish the factual elements of this defence, they
would encounter serious problems of credibility. Therefore,
with a view to supporting other evidence, they obtained a
subpoena requiring the production of Security Service docu
mentation comprising several thousand pages. The respondent
(the Deputy Solicitor General) replied with a certificate under
subsection 36.1(1) of the Canada Evidence Act, objecting to
the disclosure of the documents and of the information con
tained therein, on the ground that such disclosure would be
injurious to national security and international relations. The
certificate included some explanation of the dangers com
plained of, somewhat fuller details being provided in a secret
affidavit which the respondent later submitted. Pursuant to
subsection 36.2(1), the matter was brought before the Chief
Justice, for his determination as to whether the public interest
in disclosure, based upon the public interest in the due adminis
tration of justice, outweighed in importance the public interest
asserted by the respondent. The Chief Justice ruled that it did
not. He declined to inspect any of the documents, and upheld
the objection to disclosure.
Held, the appeal should be dismissed.
Per Le Dain J. (Ryan J. concurring): Under subsection
36.1(2), whether to inspect the documents concerned is a
question within the judge's discretion. In deciding this question,
the Chief Justice guided himself by the principle that an
inspection should be conducted only if it appears to be neces
sary in order to determine whether disclosure should be
ordered. This principle is supported both by the wording of
subsection 36.1(2) and by judicial opinion, although judicial
opinion does vary on the issue of when inspection should be
regarded as necessary. Many of the comments on this issue by
the House of Lords in the Air Canada case 6annot be applied
uncritically, since they relate to an English rule of court worded
differently from subsection 36.1(2).
The latter provision permits (if it does not require) the judge
to consider, when deciding whether to inspect, the balance of
the competing public interests as it appears at that point,
together with the likelihood that inspection would alter the
judge's view of that balance and his consequent impression as
to the propriety of disclosure. Thus, if it is clear in the
particular case that the public interest in non-disclosure out
weighs the public interest in disclosure, and that inspection
could not conceivably change that view, then even if the public
interest in disclosure is strong, the judge need not proceed to an
inspection.
In the instant case, the argument in favour of requiring
disclosure—and in particular, disclosure of the information
which relates to the reasons for the Operation—is indeed a
serious one. Furthermore, it is true that disclosure is not an
all-or-nothing proposition: the Court does have the option of
ordering disclosure of only some of the information sought, and
may also attach to the disclosure conditions or restrictions
aimed at reducing the risk to national security and internation
al relations. The difficulty, however, of confining disclosure to
certain information without its full context should not be
underestimated. It is also doubtful whether the Court is, with
out assistance, capable of determining what limited information
would be sufficient for purposes of the appellants' defence, or of
determining the adequacy of restrictions accompanying
disclosure.
These doubts aside, the disclosure of any of the information
which might be sufficient for the appellants' defence would
indeed be likely to injure national security and international
relations, for the reasons indicated in the respondent's material,
and the importance of such an injury would outweigh the
importance of disclosure for the appellants' defence. Conse
quently, the information should not be inspected, and should
not be disclosed.
Per Marceau J.: The judgment under appeal was one of the
greatest importance because it dealt with a conflict between a
particular public interest and that in the proper administration
of justice. Furthermore, it was the initial judgment made
pursuant to the recent amendment to the Canada Evidence Act
in respect of the disclosure of Government information. Under
the law as it now stands, except as to information involving a
confidence of the Queen's Privy Council, an objection to disclo
sure on the ground of public interest is subject to verification by
a superior court. The court has a right to examine the informa
tion and may overrule the objection if it decides that the public
interest in disclosure outweighs in importance the specified
public interest. In the case of an objection based upon injury to
international relations or national defence, section 36.2(1) pro
vides that the objection may be determined only by the Chief
Justice of the Federal Court or such other judge of that Court
as the Chief Justice designates.
The approach adopted and principles applied by Thurlow
C.J. could not be disagreed with nor did he err in his apprecia
tion of the evidence. The reasons given by the Chief Justice for
his decision appeared convincing and the appeal could not
succeed. Nevertheless, certain points of particular significance
should be emphasized.
(1) The most substantial change brought about by the recent
legislation was that objections to -disclosure on the grounds of
injury to international relations or national security were no
longer to be treated as absolute. This change was considered
necessary because the concepts involved in the formulation of
such an objection were so vague as to be open to abuse. But
once the Court is shown that international relations or national
security are genuinely affected, the harm resulting from non-
disclosure would have to be great for the judge to say that the
public interest in the due administration of justice was pre
dominant. The factors to be taken into account in balancing the
competing public interests could not be classified as they were
to be drawn from the circumstances of each case. But in
weighing the immunity claim, the judge must have regard to
the knowledge of the one who asserts the objection in view of
the fact that a judge lacks expertise in matters of national
defence and international relations. The judge is, however, well
qualified to assess the issues of: purpose for which the informa
tion is required; importance of disclosure to achieve that pur
pose; relevancy; and the financial, social or moral interests at
stake in the litigation. Those are the issues relating to the
public interest in disclosure.
(2) It was clear that the Court had to proceed by two stages.
While the Court had power to inspect the documents, it had no
duty to do so and it would be abusing its authority if it
exercised this power other than because it was necessary to do
so in arriving at a conclusion. The speeches in Air Canada and
Others v. Secretary of State for Trade and Another, [1983] 2
W.L.R. 494; [1983] 1 All ER 910 (H.L.) correctly indicated
that whether there was a likelihood that the documents would
support the case of the party seeking disclosure was a basic test
in the Court's decision on the question as to whether it should
proceed to inspection. That case was not, however, authority for
the proposition that this was the only or decisive test.
(3) Appeals under this new legislation are not governed by
the basic principle that the appellate court's role is not to retry
the case on its facts but only to ascertain whether the trial
judge erred in his appreciation of the evidence as a whole. Since
the whole of the evidence is in writing and considering that the
appreciation to be verified is not susceptible of degrees, it being
the result of a straight "balancing", the court must intervene if
its appreciation differs from that of the trial judge.
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
Stein, et al. v. The Ship "Kathy K", et al., [1976] 2
S.C.R. 802.
CONSIDERED:
Conway v. Rimmer and Another, [1968] A.C. 910
(H.L.); Burmah Oil Co. Ltd. v. Governor and Company
of the Bank of England and Another, [1980] A.C. 1090
(H.L.); Air Canada and Others v. Secretary of State for
Trade and Another, [19831 2 W.L.R. 494; [1983] 1 All
ER 910 (H.L.); Re Carey and The Queen (1983), 43
O.R. (2d) 161 (C.A.).
COUN SEL:
R. Mongeau for appellant Maurice Goguen.
H. W. Yarosky for appellant Gilbert Albert.
J. R. Nuss, Q.C., G. H. Waxman and A.
Lutfy for respondent.
SOLICITORS:
R. Mongeau, Montreal, for appellant Mau-
rice Goguen.
Yarosky, Fish, Zigman, Isaacs & Daviault,
Montreal, for appellant Gilbert Albert.
Ahern, Nuss & Drymer, Montreal, for
respondent.
The following are the reasons for judgment
rendered in English by
LE DAIN J.: This is an appeal from a judgment
of the Chief Justice of the Federal Court [[1983] 1
F.C. 872], pursuant to section 36.2 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] upholding an
objection to the disclosure of information con
tained in documents and files forming part of the
records of the Security Service of the Royal
Canadian Mounted Police on the ground that it
would be injurious to national security and inter
national relations.
The disclosure is sought by the appellants to
permit them to adduce evidence which they say is
necessary to their defence on charges of conspiring
to break and enter and commit theft and of break
ing and entering and committing theft. The
charges arise out of an operation carried out by the
Security Service known as "Operation Ham". The
appellants are charged with the theft of tapes
containing the membership list of the Parti
québécois.
The full and careful reasons of the learned Chief
Justice, setting out the factual background, the
legal framework and the nature of the materials
submitted and referred to in support of the com
peting claims of public interest, permit me to
address the issues on the appeal with brief refer
ence to what appears to me to be pertinent to
them.
The information in issue is contained in a
number of documents and files totalling some
8,200 pages. The certificate of the respondent, the
Deputy Solicitor General, objecting to its disclo
sure, in accordance with subsection 36.1(1) of the
Canada Evidence Act [as enacted by S.C. 1980-
81-82-83, c. 111, s. 4], states that its disclosure
would be injurious to national security and inter
national relations and more particularly [at page
877]:
... would identify or tend to identify: a) human sources and
technical sources of the Security Service; b) targets of the
Security Service; c) methods of operation and the operational
and administrative policies of the Security Service, including
the specific methodology and techniques used in the operations
of the Security Service and in the collection, assessment and
reporting of security intelligence; and d) relationships that the
Security Service maintains with foreign security and intelli
gence agencies and information obtained from said foreign
agencies.
The objection to disclosure is further supported by
a secret affidavit of the respondent which explains
how disclosure of information can be injurious to
national security and international relations, iden
tifies the general subject-matter of the documents
and files containing the information in issue, and
invokes with respect to each item the reasons of
public interest for the objection to disclosure.
These reasons, although stated in somewhat great
er detail and referring to the particular items listed
in the subpoenas duces tecum, are in substance
those set out in the certificate.
The public interest in disclosure asserted by the
appellants and supported by their affidavits is the
interest in the due administration of justice, which
in this case is characterized by them as the right to
full answer and defence. The defence which the
appellants intend to put forward at their trial is
that the taking of the tapes was not theft, an
essential element of the charges against them,
because it was not done fraudulently and without
colour of right, as required by the definition of
theft in section 283 of the Criminal Code [R.S.C.
1970, c. C-34]. This defence will require them, in
their submission, to prove that surreptitious entry
was a well-established method of investigation in
the Security Service of the R.C.M.P.; that Opera
tion Ham was approved by the senior officers of
the Security Service; that it was planned and
carried out as part of the investigation of certain
matters of serious security concern, which may be
summarized as alleged foreign interference in sup
port of the separatist movement in Quebec by
financial and other means, alleged transmission of
classified information by persons in the public
service of Canada to persons in the separatist
movement in Quebec, and possible infiltration of
the separatist movement by terrorist elements; and
that the appellants believed Operation Ham to be
lawful. The appellants contend that, because of
problems of credibility, there is a serious risk of
failing to convince a jury of these facts if they are
confined to the presently available testimonial and
documentary evidence. The problems of credibili
ty, according to the appellants, arise from the
unusual nature of the alleged or suspected activi
ties which are said to have been the reasons for
Operation Ham, and from the obvious interest of
the appellants and others, consisting mainly of
persons accused of the same offences, who could
be called to testify. They further contend that the
presently available documentary evidence is not as
complete or clear as one might wish concerning the
reasons for Operation Ham, and indeed adds to
the problems of credibility. They support this con
tention by reference to the use that was made of it
in cross-examination at the trial of one of the other
accused in order to create doubt as to the real
reasons for Operation Ham. Finally, they contend
that the problems of credibility have been
aggravated by the public comment of the Premier
of Quebec on the testimony given at the trial of
one of the other accused. Because of these prob
lems of credibility, they say that the evidence in
the documents and files of the Security Service of
the facts which they must establish, and particu
larly of the foundation or serious nature of the
reasons for Operation Ham, is essential to their
defence.
The determination to be made in a case such as
this is provided for by subsections 36.2(1) and
36.1(2) of the Canada Evidence Act [as enacted
by S.C. 1980-81-82-83, c. 111, s. 4] as follows:
36.2 (1) Where an objection to the disclosure of information
is made under subsection 36.1(1) on grounds that the disclosure
would be injurious to international relations or national defence
or security, the objection may be determined, on application, in
accordance with subsection 36.1(2) only by the Chief Justice of
the Federal Court, or such other judge of that court as the
Chief Justice may designate to hear such applications.
36.1.. .
(2) Subject to sections 36.2 and 36.3, where an objection to
the disclosure of information is made under subsection (1)
before a superior court, that court may examine or hear the
information and order its disclosure, subject to such restrictions
or conditions as it deems appropriate, if it concludes that, in the
circumstances of the case, the public interest in disclosure
outweighs in importance the specified public interest.
Authority is thus conferred by subsection
36.1(2) to examine information before deciding
whether to order its disclosure. A principal issue
on the appeal is whether the Chief Justice erred in
deciding not to examine the information in this
case for the reasons given by him in the following
passages [at pages 887-888 and 907]:
However, apart altogether from rules of court, what subsec
tion 36.1(2) appears to me to do is to vest in the Court
authority to examine the information sought. The subsection
uses the word "may" which is not mandatory but permissive
and it appears to me that the nature of the application is such
that before exercising the authority to examine the information
the judge hearing the application will have to be persuaded on
the material that is before him either that the case for disclo
sure, that is to say, the importance of the public interest in
disclosure, in the circumstances outweighs the importance of
the public interest in keeping the information immune from
disclosure or, at the least, that the balance is equal and calls for
examination of the information in order to determine which
public interest is more important in the particular circum
stances. This interpretation, which appears to me to be in
harmony with the approach to the problem adopted by the
House of Lords in the Air Canada case and that of the earlier
development of the law relating to examination of documents
by the Court in such situations, is, I think, open on the wording
of subsection 36.1(2) and should, I think, be adopted. In it the
object of the Court's examination, when an examination takes
place, will be to ascertain whether a preponderance of impor
tance in favour of disclosure exists. That seems to be the
expressed intention of the subsection. On the other hand, if no
apparent case for disclosure has been made out, if the balance
does not so much as appear to be even, the preponderance
obviously favours the upholding of the objection and in such a
situation I do not think the subsection requires the Court to
examine the information to see if it will tip the balance the
other way. To interpret the subsection otherwise would, as it
seems to me, make it necessary for the Court to examine the
information in every case. I think it is unlikely that that was
Parliament's intention and more especially so where the objec
tion is based on matters of such obvious sensitivity as national
security, national defence and international relations.
On the whole of the material before me I am of the opinion
that in the circumstances of this case not only is the importance
of the public interest in national security and international
relations not outweighed by the importance of the public
interest in the proper administration of justice but that the
evidence preponderates heavily in favour of the importance of
the former as outweighing the importance of the latter. In such
circumstances, it is, in my view, unnecessary that I should call
for or examine any of the documents or information in question
and undesirable that I should do so both because the authority
to examine should only be exercised when necessary and
because in all the circumstances I do not see any reason to
suppose that an examination of the documents would indicate
that the documents or information therein should be disclosed
or that such an examination would otherwise serve any useful
purpose.
As I read those reasons, the test or criterion
applied by the Chief Justice to the exercise of the
discretion to examine, particularly as it is reflected
in the concluding passage, may be summarized as
follows: examination should only be undertaken if
it appears necessary to determine whether disclo
sure should be ordered. In my respectful opinion,
that test finds support in the weight of judicial
opinion on the issue of examination, or "inspec-
tion" as it is generally called, and in the terms of
subsection 36.1(2) of the Canada Evidence Act.
There have been many expressions of judicial opin
ion in the leading cases on the issue of inspection.
Reference was made in argument in particular to
what was said by the House of Lords in Conway v.
Rimmer and Another, [1968] A.C. 910, Burmah
Oil Co. Ltd. v. Governor and Company of the
Bank of England and Another, [1980] A.C. 1090,
and Air Canada and Others v. Secretary of State
for Trade and Another, [1983] 2 W.L.R. 494;
[1983] 1 All ER 910, and by the Ontario Court of
Appeal in the recent case of Re Carey and The
Queen [(1983), 43 O.R. (2d) 161] which was
decided after the judgment of the Chief Justice in
the present case. It would not serve a useful pur
pose to attempt to quote at length from these
expressions of opinion. They vary considerably in
their emphasis, and it is the weight of the emphasis
that must be seized on, having regard always to
the terms of subsection 36.1(2) and the nature of
the public interests involved in this case. That
inspection is a matter of discretion to be undertak
en only when necessary appears to be generally
conceded. Where the expressions of opinion appear
to vary is as to when or in what circumstances it
should be regarded as necessary. Sometimes
inspection is spoken of, as by Lord Reid and by
Lord Morris of Borth-y-Gest (and perhaps also by
Lord Pearce) in Conway v. Rimmer, as a safe
guard of the public interest in protection against
disclosure where, on the apparent balance of the
competing interests, the court is already inclined to
order disclosure. Sometimes it is spoken of as
something to be undertaken in cases of real doubt,
including doubt as to whether particular informa
tion falls within a public interest against or in
favour of disclosure, as in the speeches of Lord
Upjohn in Conway v. Rimmer and of Lord Keith
of Kinkel and Lord Scarman in Burmah Oil. Lord
Wilberforce's speech in Burmah Oil contains the
strongest expression of caution against the un
necessary resort to inspection, where he says at
page 1117: "To invite a general procedure of
inspection is to embark the courts on a dangerous
course: they have not in general the time nor the
experience, to carry out in every case a careful
inspection of documents and thereafter a weighing
process." In Air Canada, Lord Fraser of Tullybel-
ton said at page 916 [All ER] : "Inspection is with
a view to the possibility of ordering production,
and in my opinion inspection ought not to be
ordered unless the court is persuaded that inspec
tion is likely to satisfy it that it ought to take the
further step of ordering production." Much of
what was said in Air Canada, on which the appel
lants in this case particularly relied, was directed
to the meaning of the requirement "necessary .. .
for disposing fairly of the cause" in the English
discovery rule (R.S.C., Ord. 24, r. 13) and must,
therefore, be treated with caution, as suggested by
the Chief Justice, because of the different terms of
subsection 36.1(2) of the Canada Evidence Act.
This different legislative basis for the exercise of
the discretion as to whether to inspect was noted
by Thorson J.A., delivering the judgment of the
Ontario Court of Appeal in Re Carey and The
Queen, on which the appellants placed particular
reliance. After a very comprehensive review of the
authorities, he affirmed a two-stage approach to
the issues of inspection and disclosure, from which
it is possible to infer that the apparent balance of
the competing public interests is not to be con
sidered at the stage of deciding whether to inspect,
but only whether a sufficient case of public inter
est in disclosure has been established to call for
inspection. I cannot think, however, that it was
intended to suggest that where, in the particular
circumstances of the case, it is clear that the public
interest in the protection from disclosure out
weighs the public interest in disclosure and that
inspection could not conceivably change that view,
the court should nevertheless inspect if a serious
case of public interest in disclosure has been estab
lished. In any event, Thorson J.A. considered the
judgment of the Chief Justice in the present case
and concluded [at pages 193-194] that it was not
applicable to the issue before him, because it "rests
on a different foundation of law and invokes a very
different kind of public interest". I agree with the
Chief Justice that the terms of subsection 36.1(2)
permit—if they do not compel—the consideration,
in deciding whether to examine information, of the
apparent balance of the competing public interests
at that stage and the likelihood that examination
could alter the view of that balance and the
impression as to whether disclosure should be
ordered.
Indeed, towards the conclusion of his argument,
counsel for the appellants appeared to make sub
stantial concession to this view. He suggested a
test for examination which I understood to be
essentially the following: the Court should examine
the information if what the applicant has invoked
in favour of disclosure is serious enough that it
may in the circumstances outweigh the reasons
invoked for protection against disclosure. In the
final analysis, the appellants' contention in favour
of examination appeared to be that, in view of the
relative seriousness of the case for requiring evi
dence contained in the information, the Court
should examine the information to determine if
any of it that would be helpful to the appellants'
proposed defence could be disclosed under condi
tions or restrictions, as contemplated by subsection
36.2(1), that would so reduce or eliminate the
possible injury to national security and interna
tional relations as to tip the balance in favour of
disclosure. I have given this contention very serious
consideration, because it is clear that the Court is
not obliged to think in terms of disclosing all or
none of the information. It could order the disclo
sure of some of the information under conditions
or restrictions of the kind suggested by the appel
lants (see Lord Pearce in Conway v. Rimmer at
page 988, and Lord Keith of Kinkel in Burmah Oil
at page 1135), although the difficulty of confining
disclosure to certain information without its full
context is not to be underestimated. I regard the
appellants' case for requiring the evidence in the
information, particularly with reference to the rea
sons for Operation Ham, to be a serious one. I
refrain from commenting on the relative weight of
its various aspects in case anything I might say
could conceivably be prejudicial. I have, neverthe
less, reluctantly come to the conclusion that the
disclosure of any of the information considered to
be sufficient for purposes of the appellants'
defence, even under restrictions of the kind sug
gested above (assuming that the Court, unaided,
could determine such sufficiency and the adequacy
of the restrictions, of which I have serious doubt),
would be likely, for the reasons indicated in the
respondent's certificate and secret affidavit, to be
injurious to national security and international
relations, and that such injury would outweigh in
importance the relative importance of the disclo
sure to the appellants' defence. I thus agree that
the information should not be examined and that it
should not be disclosed. I would accordingly dis
miss the appeal. This is not an appropriate case for
costs.
RYAN J.: I concur.
* *
The following are the reasons for judgment
rendered in English by
MARCEAU J.: The particular significance of the
judgment here under appeal, a judgment rendered
by the Chief Justice of the Court, can hardly be
overstated. Not only does it deal with one of the
most delicate situations a court of law may be
confronted with—namely, that created by a colli
sion and conflict between a particular public inter
est and the public interest in the proper adminis
tration of justice; it is, most noteworthily, the very
first judgment made pursuant to the new section
36.2, recently incorporated into the Canada Evi
dence Act, R.S.C. 1970, c. E-10, as amended [by
S.C. 1980-81-82-83, c. 111, s. 4] in connection
with the "Disclosure of Government Information".
It will be recalled that Parliament, in November
of 1982, in dealing with the general problem of
access to government information, brought sub
stantive changes to the rules applicable when a
minister of the Crown, before a court or a tribunal
with jurisdiction to compel, objects on grounds of
public interest to the disclosure of some informa
tion sought by a litigant. Section 41, subsections
(1) and (2), of the Federal Court Act [R.S.C.
1970 (2nd Supp.), c. 10], in which were set out the
rules until then in force in such situations, was
repealed [by S.C. 1980-81-82-83, c. 111, s. 3] and
replaced by three new sections inserted [by s. 4]
into the Canada Evidence Act: sections 36.1, 36.2
and 36.3.' According to the new rules, the right to
object to disclosure on grounds of public policy is
confirmed, and even facilitated and extended: it
can be exercised orally and not necessarily by the
filing of a sworn certificate; it covers any informa
tion and is not restricted to documents; it is given
to any interested person and not reserved to minis
ters of the Crown. But the objection is definitive
and unassailable in the sole case where a confi
dence of the Queen's Privy Council is involved. In
all other cases, including those where international
relations or national defence or security are said to
be compromised, the objection will be subject to
verification. A superior court will have the right to
examine the information sought and the power to
overrule the objection "if it concludes that, in the
circumstances of the case, the public interest in
disclosure outweighs in importance the specified
public interest" [s. 36.1(2)]. As to the court to
which is assigned the duty to appreciate the situa
tion, it will be the superior court before which the
objection is taken in all instances except those
where international relations or national defence
' Section 41 of the Federal Court Act, which was repealed,
read as follows:
41. (1) Subject to the provisions of any other Act and to
subsection (2), when a Minister of the Crown certifies to any
court by affidavit that a document belongs to a class or
contains information which on grounds of a public interest
specified in the affidavit should be withheld from production
and discovery, the court may examine the document and
order its production and discovery to the parties, subject to
such restrictions or conditions as it deems appropriate, if it
concludes in the circumstances of the case that the public
interest in the proper administration of justice outweighs in
importance the public interest specified in the affidavit.
(2) When a Minister of the Crown certifies to any court by
affidavit that the production or discovery of a document or
its contents would be injurious to international relations,
national defence or security, or to federal-provincial rela
tions, or that it would disclose a confidence of the Queen's
Privy Council for Canada, discovery and production shall be
refused without any examination of the document by the
court.
or security could be involved. And here comes into
play section 36.2, which reads as follows:
36.2 (1) Where an objection to the disclosure of information
is made under subsection 36.1(1) on grounds that the disclosure
would be injurious to international relations or national defence
or security, the objection may be determined, on application, in
accordance with subsection 36.1(2) only by the Chief Justice of
the Federal Court, or such other judge of that court as the
Chief Justice may designate to hear such applications.
(2) An application under subsection (1) shall be made within
ten days after the objection is made or within such further or
lesser time as the Chief Justice of the Federal Court, or such
other judge of that court as the Chief Justice may designate to
hear such applications, considers appropriate.
(3) An appeal lies from a determination under subsection (1)
to the Federal Court of Appeal.
(4) Subsection 36.1(6) applies in respect of appeals under
subsection (3), and subsection 36.1(7) applies in respect of
appeals from judgments made pursuant to subsection (3), with
such modifications as the circumstances require.
(5) An application under subsection (1) or an appeal brought
in respect of such application shall
(a) be heard in camera; and
(b) on the request of the person objecting to the disclosure of
information, be heard and determined in the National Capi
tal Region described in the schedule to the National Capital
Act.
(6) During the hearing of an application under subsection (1)
or an appeal brought in respect of such application, the person
who made the objection in respect of which the application was
made or the appeal was brought shall, on the request of that
person, be given the opportunity to make representations ex
parte.
So, the judgment here under appeal is the first
ever rendered in application of this new section
36.2, incorporated into the Canada Evidence Act
in 1982. The facts that set in motion the procedure
have been much in the news. They are set out in
the reasons delivered by the Chief Justice; only
their main features need to be repeated here.
The appellants are two of eleven active or
former members of the Royal Canadian Mounted
Police (the R.C.M.P.) similarly charged under the
Criminal Code with the offences of theft and
conspiracy to commit theft. The eleven informa-
tions laid in 1981 relate to an incident known as
Operation "Ham", which involved the Security
Service of the R.C.M.P. and took place in Mon-
treal, during the night of January 9, 1973, when
premises were entered surreptitiously and comput
er tapes recording membership lists of a political
party were removed, taken out, copied and, some
hours later, returned to the exact place from which
they had been taken. The two appellants, after
waiving preliminary inquiry, have been committed
to trial, by a judge and jury, in the Superior Court
(Criminal Division) of the District of Montreal,
Quebec. The trial of one of the eleven co-accused
has already been completed before a judge alone,
giving rise to a verdict of guilty and a suspended
sentence; the trial of another before a judge and
jury has aborted after several days of hearing, the
prosecution itself being ordered stayed; and finally,
a permanent stay of proceedings has just been
ordered with respect to seven others. In the case of
the two appellants, a joint indictment was pre
pared by the Attorney General for the Province of
Quebec and after several postponements, their
joint trial was set to begin on January 17, 1983.
On January 5, 1983, pursuant to a request by
counsel for the appellants, a subpoena duces tecum
was issued by a judge of the Superior Court,
District of Montreal, addressed to the respondent,
in his capacity as Deputy Solicitor General of
Canada, and to the Clerk of the Privy Council of
Canada, requiring each of them to attend the court
and to bring with them a large number of docu
ments enumerated: in the case of the Deputy
Solicitor General, in a list of some twenty-eight
items of volumes and files; and in the case of the
Clerk of the Privy Council, in a list of some thirty
other items, some of which were, apparently, again
volumes.
On January 12, 1983, the respondent filed with
the Superior Court, District of Montreal, a certifi
cate objecting to disclosure of the documents listed
in the duces tecum and the information contained
therein on grounds that disclosure would be injuri-
ous to national security and international relations.
(The certificate is quoted verbatim in the judg
ment under appeal and need not be reproduced
again.) An application for determination of the
objection in accordance with the new sections 36.1
and 36.2 of the Canada Evidence Act was then
presented to the Chief Justice of the Federal
Court, who established a procedure to be followed
by both parties, permitted the filing of the affida
vit and other evidence to which the parties intend
ed to refer in support of their respective positions,
and set the matter down for hearing commencing
on March 1, 1983. Judgment was rendered on
April 28, 1983, and in support thereof, lengthy
reasons were delivered in which the learned Chief
Justice explained how, according to what princi
ples and on what basis, he had come to a conclu
sion without having to proceed to an examination
of the documents. That conclusion was summa
rized in the final paragraph of his reasons [at page
9081:
I am accordingly of the opinion that in the circumstances of
this case as disclosed by the material before me the importance
of the public interest in maintaining the documents and infor
mation in them immune from disclosure on the grounds that
their disclosure would be injurious to national security and
international relations is not outweighed in importance by the
public interest in disclosure and I so determine. It follows that
the objections taken in the certificate should be upheld and that
this application fails and should be dismissed.
This is the judgment here under appeal—an
appeal brought pursuant to subsection 36.2(3) of
the Act, which gave rise to seven full days of
argument by counsel and must now be decided.
In my view, this appeal cannot succeed. I see no
basis for disagreeing with the approach adopted
and the principles applied by the learned Chief
Justice in dealing with the matter, and I find no
error in his appreciation of the evidence put before
him. I do not think there is any need for inspecting
the documents sought before confirming his con
clusion that the objection to their disclosure ought
to be upheld. The reasons he gave to support that
conclusion appear to me convincing and, except for
a few minor passages (which I will have occasion
to discuss later), I readily adopt them. There is not
much to add to those reasons in my opinion, but I
wish, nevertheless, to emphasize some of the points
which appear to me of particular significance in
the consideration of the matter.
1. The meaning of the new rule applicable to
claims for immunity based on international rela
tions or national security.
The most substantial change brought by the new
legislation respecting disclosure of government
information is undoubtedly that objections to dis
closure on grounds that international relations or
national security might be injured will no longer
be treated as absolute like those based on the
necessity to keep secret a confidence of the
Queen's Privy Council: objections of that type will,
be subject to verification and examination like any
other public-interest objections. Is it for a moment
thinkable that the reason for such a fundamental
change could be that international relations and
national security have become, in the minds of the
Members of Parliament, less critical than before,
or less important than any confidence of the
Queen's Privy Council? Of course not. That there
can be no public interest more fundamental than
national security is as true today as it was
yesterday.
The essential reason for the change, in my
understanding, is that the concepts involved in the
formulation of an objection of that nature are so
broad and so vague that, in practice, they leave
much room for exaggerations and over-statements,
not to mention clear abuses, which it was felt
desirable to avoid with every respect for the
requirements of the due administration of justice.
While a confidence of the Queen's Privy Council,
with the precisions given in the Act, is readily
identifiable, a possible danger to international
relations or national security is not so easily cap
able of being recognized and, as a result, may be
feared and evoked somewhat too quickly, albeit in
perfect good faith. That is clearly apparent in the
field of international relations, but is also true,
although to a somewhat lesser degree, in that of
national security, and if the possibility of improper
use has always been present in the former system,
it will, of course, be even more present in the new
one where the objection is available not only to
ministers but to any person claiming interest.
The new rule, as I view it, is aimed at thwarting
those possible exaggerations, over-statements or
abuses by giving the Court the authority to exam
ine the information and to declare that the public
interest invoked as the basis for objecting to dis
close, although related to international relations or
national security, is, in any given instance, out-,
weighed in importance by the public interest in
requiring disclosure for the due administration of
justice. But I would think that, on it being estab
lished as a fact and not as a mere possibility that
international relations or national security is to be
genuinely affected by disclosure, the harm that
may result to the person seeking the information,
if that information is denied, will have to be great
indeed for the judge to be able to say that the
public interest in the due administration of justice
in this particular case nevertheless is predominant
and requires that the information be disclosed. I
cannot express it better than did the Chief Justice
when, after having acknowledged the great impor
tance of the public interest in the due administra
tion of justice, especially criminal justice, he goes
on to say (at page 884):
Important as that public interest is, however, I think it is
apparent from the nature of the subject-matter of international
relations, national defence and national security that occasions
when the importance of the public interest in maintaining
immune from disclosure information the disclosure of which
would be injurious to them is outweighed by the importance of
the public interest in the due administration of justice, even in
criminal matters, will be rare.
Which brings up the question of the factors that
may be taken into account in assessing, weighing
and balancing the two public interests involved. It
seems to me that these factors cannot be listed or
even classified in any useful way, since they must
be drawn essentially from the circumstances of
each case; but looking at one side of the equation,
I think with the learned Chief Justice that in
assessing the validity and seriousness of the claim
for public-interest immunity, "the circumstance of
who it is that asserts the objection and what his
interest in and knowledge of the need for main
taining immunity from disclosure may have its
bearing" (at page 880). I will even add that, in my
view, in matters of national security, that circum
stance may even be the most forceful one, because
of the expertise required to properly assess the
situation—an expertise a judge normally does not
have. And, looking at the other side, I think—here
again with the Chief Justice, if I read his reasons
correctly—that the weight of the public interest in
disclosure can only be assessed in concreto, accord
ing to the circumstances of the particular case, and
more or less regardless of the contention of the
applicant, since this assessment is here well within
the field of expertise of the judge, relating as it
does to the immediate purpose for which the liti
gant requires the information, the importance of
the disclosure to achieve that purpose, the relevan
cy of such purpose in the whole litigation, and the
interest—financial, social or moral—at stake in
that litigation.
2. The two-stage approach and the test that is
implied in it.
The thrust of the appellants' argument in sup
port of the appeal was that the learned Chief
Justice was wrong in reaching his conclusion
before examining the files and documents sought.
It was said that the reasons set out in the certifi
cate establishing the claim and the TOP SECRET
affidavit filed to substantiate it should not have
been considered sufficiently clear and detailed to
dispense with direct verification, the more so since
much of the material had already been disclosed to
the McDonald Commission. It was said also that
the circumstance that the subpoenas were issued
on behalf of accused individuals in a criminal case
constituted in itself an exceptional circumstance
requiring a thorough examination of the informa
tion required. But in fact, the main submissions in
that regard were much more substantial and com
plex than those two opening statements, and I will
endeavour to summarize them briefly as they were
presented to us.
The argument goes like this. The appellants,
who do not contest their participation in Operation
"Ham", intend to offer as a defence to the charges
of theft and conspiracy to commit theft laid
against them: (a) that the operation was not
undertaken fraudulently and without colour of
right; and (b) that they themselves did not act
fraudulently and without colour of right. This
defence, in view of the factors that constitute the
crime of theft under the Criminal Code and the
importance attached to the state of mind of the
person doing the act, is a serious one, albeit appar
ently raised in like circumstances for the first time
in a Canadian court. Now, there is absolutely no
doubt that the documents sought may help to
establish the elements of that defence: the appel
lants, who are aware, at least generally, of the
contents of many of the files, can attest to that fact
and, in any event, the affidavit of the respondent
confirms it. By requesting the documents, there
fore, the appellants are not engaged in a fishing
expedition; the information they seek is clearly
relevant. That was sufficient to preclude the
learned Chief Justice from denying their request
without proceeding to an examination of the docu
ments. Indeed, if a two-stage approach appears to
be required—the judge having to assess the situa
tion before going into the examination—the
second stage should be undertaken as soon as a
serious or prima facie case for disclosure has been
established. Such a test is more in accordance with
the spirit of the legislation and the thrust of the
common law authorities, as shown in the most
recent English case on the subject, Air Canada
and Others v. Secretary of State for Trade and
Another, [1983] 2 W.L.R. 494; [1983] 1 All ER
910 (H.L.), than the one applied by the learned
Chief Justice—namely, that it be immediately
shown that the public interest in disclosure is at
least equal in importance to that in immunity—a
test which placed on the appellants a burden too
onerous and too great at that stage.
Some of the propositions advanced by counsel in
making this argument on which they mostly rely
require special comments, but first I would like to
consider generally this two-stage approach re
ferred to and the so-called test implied therein.
That, in the case of a request for disclosure of
information in respect of which an objection has
been raised under sections 36.1 and 36.2 of the
Act, the court must proceed by way of a potential
two-stage determination of the application is to me
quite clear. Authority to inspect the documents is
vested in the court, but no duty is imposed on it to
do so; and it seems to me that an authority of that
kind would be abused if it were exercised unre
servedly, uselessly and for any other reason than
because it is required to arrive at a conclusion.
This observation, to me, not only confirms the
inevitability of the two-stage approach but, at the
same time, indicates the nature of the so-called
test that is implied in it. The court will proceed to
the second stage and examine the documents if,
and only if, it is persuaded that it must do so to
arrive at a conclusion or, put another way, if, and
only if, on the sole basis of the material before it, it
cannot say whether or not it will grant or refuse
the application. Now, many reasons may be
thought of that may lead the court to reach a
conclusion on the sole basis of the material before
it: an easy possibility is a lack of seriousness in the
contention that, in the circumstances, some public
interest requires immunity; another is the frivolity
of the request for disclosure, because the informa
tion sought would likely have no bearing on the
litigation in which the applicant is involved; still
another is the unreasonableness of the application,
it being clearly of the nature of a fishing expedi
tion. But the reason most likely to come to the fore
is certainly the acquired certitude in the mind of
the judge that even if the information sought is of
the nature or to the effect expected by the appli
cant, there is no possibility that the importance of
the public interest in keeping the information
secret will be outweighed by the importance of the
public interest in disclosing it. To me, all that is
common sense, and I do not read the Chief Jus
tice's comments in support of the approach he was
adopting as meaning anything beyond that.
Nor do I read the English cases on the subject
as holding a different view. The speeches in the
Air Canada case, on which the appellants so much
rely, contain many passages emphasizing that a
likelihood that the documents would support the
case of the party seeking discovery has to be
established before the court can decide to proceed
to inspection, and it is true that this requirement
is, at times, presented as a test. I have no difficulty
with that, however. It is indeed a test; it is even the
most basic one, which was immediately put in
question in the minds of their Lordships in the
circumstance of that case, since discovery and even
inspection was there refused simply because it had
not been shown that the documents sought, what
ever their content, would really help the applicant.
But I do not understand the decision as implying
that this most basic test had to be seen as the only
one, or the final and decisive one.
I come now to some specific points made by the
appellants in the course of their argument.
(a) The question of where lay the burden of
proof was again raised and discussed in appeal, as
it had been at first instance. The learned Chief
Justice did not consider it necessary to deal at
length with it, since "in the present case the ma
terial put before me by both sides is such that, in
my view, nothing any longer turns on a question of
onus" (at page 891). I do not think that I have to
dwell on it either, but I will permit myself some
brief comments. It is trite to say that normally the
party whose case depends on the past or actual
existence of a fact which is neither of common
knowledge nor presumed by law, has the burden of
convincing the judge that such "existence" is at
least probable. If the question of where lies the
onus here relates to the very conclusion the judge
must reach to order disclosure—namely, that the
public interest in disclosure outweighs in impor
tance the specified public interest—the answer is,
necessarily, on the applicant; if it relates to inter
mediate facts, it will obviously vary from one side
to the other according to which side will be prejud
iced by the particular facts involved remaining
doubtful. So, I do not see why the question of onus
would have a particular meaning or bearing in an
application of the kind here in question and how it
could be settled in advance, whether at the first or
second stage of the so-called two-stage approach.
(b) As indicated above, the appellants contend
ed that the certificate filed by the respondent and
the TOP SECRET affidavit sworn in supplement
thereof were lacking in clarity and details, and
they found support for their contention in the
following passage of the judgment (at page 904):
I must note, however, without wishing to be critical, that a
certificate which identifies, as this one does, the information to
the disclosure of which objection is taken, by reference to the
information in a multitude of documents, some of which are in
themselves voluminous, which has not already been made
public by the report of the McDonald Commission, leaves this
Court as well as the Superior Court with the task of discerning
the subject-matter of the objection by reference to a vague
formula rather than by an intelligible description by which
particular items can be identified. In addition, there is little if
anything in the certificate or the secret affidavit or elsewhere in
the material to afford a basis for estimating or assessing the
gravity of the danger or the injury that might result from
disclosure of any particular information.
I confess to having some difficulty with this
passage. The appellants claim that, despite the
reserve at the outset, the learned Judge's com
ments cannot be understood otherwise than as a
general and clear criticism. If it is the case, I will,
with respect, dissassociate myself from such criti
cism. I do not see how, in a case where national
security is involved and the documents sought are
described as files, a certificate, which is to be
public, and the affidavit in support thereof, which,
although meant to remain secret, is to be analysed
by all the lawyers involved, can go into more
specifications and details without jeopardizing the
very purpose for which immunity is claimed. It is
true that the court is thereby left without being
able to assess the gravity of the risk to national
security that might be involved, at least with
respect to each document, before proceeding to -a
full inspection; but then, if such an assessment of
the gravity of the risk is required to reach a
conclusion, inspection will have to be done—that is
all there is to it. It is to be expected, however, that
in many cases, such as this one, an assessment of
the gravity of the risk will not be considered
necessary.
(c) A last point. The appellants have found
refuge repeatedly in the fact that they were not on
a "fishing operation", it being all but acknowl
edged that some of the documents sought would be
relevant to their case. I agree that this is not a
"fishing operation" in the sense usually given to
the expression when applied to discovery proceed-
ings: the appellants are not going completely blind.
But it seems to me that requiring 7,500 pages of
documents in order to locate a few that may be
helpful can easily be seen as not so completely
different from a fishing expedition.
3. The learned Chief Justice's appreciation of the
evidence before him.
It is well known that on an ordinary appeal from
a judgment of first instance, the appellate court's
role is not to retry the case on the facts, and while
it must ascertain that the trial judge has not made
some error in his appreciation of the evidence as a
whole, "it is not ... a part of its function to
substitute its assessment of the balance of proba
bility for the findings of the judge who presided at
the trial" (Ritchie J. delivering the judgment of
the Court in Stein, et al. v. The Ship `Kathy K",
et al., [ 1976] 2 S.C.R. 802, at page 808). Is the
present appeal governed by the same basic
principle?
I think not. Appeals under subsections 36.1(5)
or 36.2(3) of the Act, as I understand the new
legislation, cannot be treated as ordinary appeals,
where the preoccupation is strictly to verify wheth
er or not there is error in the judgment appealed
from (not whether it was the only or even the best
judgment that could have been rendered). They
are appeals against the "determination" made, the
word being given, as I understand it, a substantial
rather than a formal meaning, one that points to
the conclusion itself reached by the judge, to his
very appreciation of the situation, an appreciation
which, to a large extent, remains a moral apprecia
tion based on personal feelings and convictions. In
any event, considering that the appeal court is in
as good a position as the first judge in so far as the
correct perception of the context is concerned,
since the whole of the evidence is necessarily writ
ten evidence, and considering also that the
appreciation to be verified is not susceptible of
degrees, it being the result of a straight "balanc-
ing", the court must necessarily intervene if its
appreciation turns out to be different from that of
the trial judge. In other words, because of the
particular matters involved and the scheme of the
legislation, the appeal requires the court to pro-
ceed to an appreciation of its own without having
to give special weight to that of the first judge.
I thought I had to take a position on this
preliminary question, but, in fact, it could not have
much bearing on my attitude in this case, since my
own appreciation of the situation is, in all respects,
parallel to that of the learned Chief Justice—so
much so, indeed, that I wish simply to refer to his
analysis of the material put before him and his
reactions as to the relative importance of the two
conflicting public interests involved.
It would serve no purpose to go through the
evidence again, but maybe I could very briefly
summarize the situation as I see it. The case in
favour of immunity is very rapidly, but at once
very forcefully, put: national security and interna
tional relations will be injured. To what extent? It
is not established, but, to a certain extent,
undoubtedly, even if disclosure is ordered with
respect to single documents only, since these docu
ments, taken from files, will have to be placed into
context if they are to be used for their real mean
ing. The claim is, indeed, a class claim, one based
on the character of the document, as well as a
content claim. The case in favour of disclosing is
much more complex to assess. The appellants are
charged with important criminal offences, it is
true, although they certainly do not face the pros
pect of severe punishment nor can they expect
great social reprobation; they need the documents
for their defence, and they have a fundamental
right to resort to any defence that can help them
prove their innocence, it is also true, although the
particular defence they have in mind, if serious, is
nevertheless still problematic as to its legal value.
But beyond that and more immediately, what is
the real interest that the appellants have in disclo
sure? It is, as I see it, to buttress their testimonies
and to avoid the risk that the jury, at the end of
the trial, will come to the unanimous conclusion
that the appellants' contentions and those of all the
members of the Security Service of the R.C.M.P.
at the time of the events, including the Director,
contentions confirmed by a series of documents
put in evidence and accepted by the McDonald
Commission, are unbelievable, unacceptable,
made-up excuses and lies; more precisely, that
Operation "Ham" was not a "Puma" operation,
one of those operations involving surreptitious
entries for intelligence-gathering purposes official
ly established within the R.C.M.P. Security Ser
vice; that this particular operation was not con
ceived, authorized and undertaken as a means to
provide information in the course of an investiga
tion relating to some very specific matters pertain
ing to the duties of the Service. To accept that
national security and international relations be
injured, even to only the slightest extent, in order
that such a remote risk of extreme incredulity on
the part of twelve members of a jury be avoided,
would appear to me, I say it with respect, totally
unreasonable.
I would dismiss the appeal.
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.