Solicitor General of Canada, et al. v. Royal Commission (Health Records)

Solicitor General of Canada, et al. v. Royal Commission (Health Records)
Collection
Supreme Court Judgments
Date
1981-10-20
Report
[1981] 2 SCR 494
Judges
Laskin, Bora; Martland, Ronald; Ritchie, Roland Almon; Dickson, Robert George Brian; Estey, Willard Zebedee; McIntyre, William Rogers; Chouinard, Julien
On appeal from
Ontario
Subjects
Evidence
Decision Content
Supreme Court of Canada
Solicitor General of Canada, et al. v. Royal Commission (Health Records), [1981] 2 S.C.R. 494
Date: 1981-10-20
The Solicitor General of Canada and the Royal Canadian Mounted Police Appellants;
and
The Royal Commission of Inquiry into the Confidentiality of Health Records in Ontario and the Canadian Civil Liberties Association Respondents;
and
Superintendent Donald Heaton and Chief Superintendent Michael Spooner Interveners;
and
The Attorney General for Ontario, the Attorney General of Quebec, the Attorney General for New Brunswick, the Attorney General of British Columbia and the Attorney General for Alberta Interveners.
1980: October 14 and 15; 1981: October 20.
Present: Laskin C.J. and Martland, Ritchie, Dickson, Estey, Mclntyre and Chouinard JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Evidence—Police-informer privilege—Royal commission re confidentiality of health records—Records divulged to police without patient’s consent by physicians and hospital employees—Whether disclosure of informers’ identities prevented by privilege—The Public Inquiries Act, 1971, 1971 (Ont.), c. 49, ss. 7(1), 9, 10, 11—The Health Disciplines Act, 1974, 1974 (Ont.), c. 47, s. 50—The Public Hospitals Act, R.S.O. 1970, c. 378, s. 36—O. Reg. 577/75, s. 26(21)—R.R.O. 1970—Regulation 729, s. 48(1).
Respondent Commission stated a case to the Ontario Divisional Court asking if (1) the law recognized no privilege preventing disclosure of the identity of physicians and hospital employees who divulged medical information to the R.C.M.P. without patient authorization, and (2) if the Commission were right in requiring such disclosure from its witnesses. The issues in the courts below were enlarged, on application, because the appeal was said to raise constitutional issues. The first question fixed asked if the Commission were empowered to compel testimony from R.C.M.P. officers as to sources of information gathered in the discharge of duty and in the course of their duties of crime investigation and national security. The second question asked if, where there was a breach of a statutory obligation of confidentiality, there was a privilege prohibiting disclosure by police of their informants’ identities.
Held (Laskin C.J. and Dickson J. dissenting): The appeal should be allowed.
Per Martland, Ritchie, Estey, Mclntyre and Chouinard JJ.: The immunity from disclosure of the identity of police informers accorded in relation to information furnished to police in the course of the performance of their duties is general in scope. It applies except when disclosure of the informer’s identity, in the trial of a defendant for a criminal offence, could help show the defendant was innocent. The foundation for the rule is even stronger in relation to the function of police in protecting national security and has greater justification in protecting national security against violence and terrorism than in the investigation of crime.
The police-informer privilege applies even if the informant has communicated information which he should not have given. Here there was no legal duty not to communicate information regarding a patient to the police. The privilege is not given to the informer and misconduct on his part, therefore, does not destroy it. The privilege is that of the Crown which is in receipt of information under an assurance, express or implied, of confidentiality. The fact that it was the tribunal itself seeking the information did not affect the application of the rule for the privilege is not in any way diminished by any provision of The Public Inquiries Act, 1971.
Per Laskin C.J. and Dickson J., dissenting: A conclusion to the first question should not be attempted because of the generalized way in which it was put. The second question, however, connects with the two questions posed by the Royal Commission in the stated case.
The police-informer privilege should be recognized only in public prosecutions and criminal-related proceedings. It is not necessary to recognize the privilege in other types of proceedings merely because the police are involved and have been gathering information in the course of their police duties. Depending on the nature of the proceedings, there must be a discretion in the courts to determine whether and to what extent there should be disclosure—a balancing of the public interest in relevant disclosures and an assessment of countervailing public interest against disclosure. In cases other than criminal prosecutions and criminal-related proceedings, the courts generally must begin with a determination not to permit either party to deliberately withhold relevant and admissible evidence and must require attempts to do so to be justified and jealously scrutinized.
[Marks v. Beyfus (1890), 25 Q.B.D. 494; D. v. National Society for the Prevention of Cruelty to Children, [1978] A.C. 171; The Trial of Thomas Hardy for Treason (1794), 24 St. Tr. 199; R. v. Watson (1817), 32 St. Tr. 1; R. v. O’Connor (1846), 4 St. Tr. (N.S.) 935; Attorney-General v. Briant (1846), 15 M. & W. 169, 15 L.J. Ex. 265; Humphrey v. Archibald (1893), 20 O.A.R. 267; Rogers v. Home Secretary, [1973] A.C. 388; Reference re Legislative Privilege (1978), 18 O.R (2d) 529; 39 C.C.C. (2d) 226, referred to.]
APPEAL, enlarged by order made on application by the Solicitor General of Canada, from a decision of the Court of Appeal for Ontario[1] dismissing the appeal of the Solicitor General and allowing the appeal of the Canadian Civil Liberties Association from a judgment on a stated case posing two questions to the Divisional Court of Ontario. Appeal allowed, Laskin C.J. and Dickson J. dissenting.
J.A. Scollin, Q.C., and Eric A. Bowie, for the appellant the Solicitor General of Canada.
R.J. Carter, Q.C., for the interveners Superintendent D. Heaton and Chief Superintendent Michael Spooner.
H.T. Strosberg, for the respondent the Royal Commission of Inquiry.
Marc Rosenberg and Chris Buhr, for the respondent the Canadian Civil Liberties Association. D.W. Mundell, Q.C., and R.M. McLeod, Q.C., for the intervener the Attorney General for Ontario.
Henri Brun, for the intervener the Attorney General of Quebec.
P.L. Cumming and H. Hazen Strange, Q.C., for the intervener the Attorney General for New Brunswick.
L.F. Lindholm and B.A. Barrington-Foote, for the intervener the Attorney General of British Columbia.
William Henkel, Q.C., for the intervener the Attorney General for Alberta.
The reasons of Laskin C.J. and Dickson J. were delivered by
THE CHIEF JUSTICE (dissenting)—By Ontario Order-in-Council 3566/77, as amended by Order-in-Council 1129/78, the Honourable Mr. Justice Horace Krever was appointed as a Royal Commission of Inquiry into the Confidentiality of Health Records under The Public Inquiries Act, 1971, 1971 (Ont.), c. 49. His terms of reference were as follows:
1. to review all legislation administered by the Minister of Health (for example, The Public Hospitals Act, The Health Disciplines Act, 1974, The Health Insurance Act, 1972, and The Mental Health Act), together with any other relevant legislation administered by other Ministers, and any Regulations passed thereunder, to determine whether proper protection is given to the rights of persons who have received, or who may receive, health services, to preserve the confidentiality of information respecting them collected under that legislation;
2. to review the legality of the administrative processes under the above Acts;
3. to investigate, inquire into and consider any misconduct, and any negligent or other improper activities, practices or conduct by any person, firm, corporation or organization in relation to the above Acts and Regulations and the administration thereof, including any non‑compliance by any person, firm, corporation or organization with any of the above Acts and Regulations, and any activities, practices or other conduct by any person, firm, corporation or organization which coerced, induced, persuaded or otherwise prompted any such misconduct, negligence or other improper activity, practice or conduct, or which constituted an attempt or an agreement to coerce, induce, persuade or otherwise prompt any such misconduct, negligence or other improper activity, practice or conduct; and
4. to report thereon to the Minister of Health with any recommendations for necessary amendments to the legislation and the Regulations passed thereunder.
The present appeal, which is here by leave of this Court, arises out of a case stated by the Royal Commission which posed two questions for the Divisional Court of Ontario. The questions were these:
(a) Was I correct in ruling that the law recognizes no privilege which operates so as to prevent the disclosure to the Commission of the identity of those physicians and hospital employees who divulged medical information to members of the R.C.M.P. without the patient’s authorization?
(b) Was I correct in requiring the witnesses to answer the questions seeking the disclosure of the identity of the physicians and hospital employees in question?
The Divisional Court, speaking unanimously through Osler J., answered the first question in two parts:
(i) “Yes” with respect to the identity of those physicians and hospital employees and other persons under the control and direction of the Board of a hospital who divulged information from a medical record to members of the Royal Canadian Mounted Police without the patient’s authorization;
(ii) “No” with respect to physicians and members of other self-governing professions with regulations regarding professional conduct and who at the time were acting in a professional capacity on their own responsibility and not under the direction or control of the Board of a hospital…
Its answer to the second question was that, in accordance with the answer to the first question, there could be no encompassing response, and it must depend upon the classification into which the informant falls in each case. On appeal to the Ontario Court of Appeal, the majority of the Court (Dubin J.A., Wilson J.A. concurring) and Brooke J.A., who dissented, disagreed in different respects with the judgment below. Dubin J.A. answered both questions in the affirmative; Brooke J.A. answered them in the negative.
It is not in dispute that the terms of reference of the Royal Commission make the identity of the persons who divulged medical information about patients relevant to the inquiry. What is in dispute is whether, in the circumstances attending the disclosures and having regard to the police duties of those to whom the disclosures were made, namely officers of the Royal Canadian Mounted Police, there is a privilege in such persons, as witnesses in the inquiry, to withhold the identity of their informants, albeit the informants were, even to the knowledge of the police witnesses, in breach of a duty of confidentiality with respect to medical information about hospital patients.
Powers of the Royal Commission
It is conceded that the Royal Commission was validly appointed and that the inquiry, both as to its nature and scope, was within the competence of the Legislature and Government of Ontario. There are a number of provisions of The Public Inquiries Act, 1971 which must be brought into account for the purposes of the present case. Section 4 states the general principle of openness of hearings to the public
…except where the commission conducting the inquiry is of the opinion that,
(a) matters involving public security may be disclosed at the hearing; or
(b) intimate financial or personal matters or other matters may be disclosed at the hearing that are of such a nature, having regard to the circumstances, that the desirability of avoiding disclosure thereof in the interest of any person affected or in the public interest outweighs the desirability of adhering to the principle that hearings be open to the public;
in which case the commission may hold the hearing concerning any such matters in camera. Sections 7(1), 9, 10 and 11 of the Act are as follows:
7.—(1) A commission may require any person by summons,
(a) to give evidence on oath or affirmation at an inquiry; or
(b) to produce in evidence at an inquiry such documents and things as the commission may specify,
relevant to the subject matter of the inquiry and not inadmissible in evidence at the inquiry under section 11.
…
9.—(1) A witness at an inquiry shall be deemed to have objected to answer any question asked him upon the ground that his answer may tend to criminate him or may tend to establish his liability to civil proceedings at the instance of the Crown or of any person, and no answer given by a witness at an inquiry shall be used or be receivable in evidence against him in any trial or other proceedings against him thereafter taking place, other than a prosecution for perjury in giving such evidence.
(2) A witness shall be informed by the commission of his right to object to answer any question under section 5 of the Canada Evidence Act.
10. A commission may admit at an inquiry evidence not given under oath or affirmation.
11. Nothing is admissible in evidence at an inquiry that would be inadmissible in a court by reason of any privilege under the law of evidence.
Confidentiality of Health Records
It was the breach of confidentiality of the health records of patients, particularly hospital patients, that brought about the inquiry. Hundreds of instances of the disclosure of such information without the consent of the patients were admitted during the course of the inquiry. In his reasons for the Ontario Court of Appeal, Dubin J.A. expressed the duty of confidentiality as between doctors and their patients in the following terms:
Members of the medical profession have a duty of confidentiality with respect to their patients. They are under restraint not to volunteer information respecting the condition of their patients or any professional services performed by them without their patient’s consent. In the absence of such consent, members of the medical profession breach their duty if they disclose such information unless required to do so by due process of law.
That duty is reinforced by legislative policy reflected in The Health Disciplines Act, 1974, 1974 (Ont.), c. 47, and in The Public Hospitals Act, R.S.O. 1970, c. 378, and is given precision by regulations under the respective Acts, especially by O. Reg. 577/75 under the former Act. Section 26 of the Regulation defines “professional misconduct” to mean, inter alia,
26. …
21. giving information concerning a patient’s condition or any professional services performed for a patient to any person other than the patient without the consent of the patient unless required to do so by law;
Regulation 729 under The Public Hospitals Act provides in s. 48(1) that subject to certain exceptions, not material here, “a [hospital] board shall not permit any person to remove, inspect or receive information from a medical record”. The reasons of the Divisional Court state, quite properly, that the prohibition (which is fortified by a penalty provision under s. 36 of The Public Hospitals Act) is directed only to a hospital board but the Court goes on to say that “it would result in an absurd position if individual members of the board, employees of the board or employees or servants of a hospital under the control of the board are to be permitted with impunity and in secrecy to remove, inspect, or receive information from a medical record when such acts are forbidden to the board itself”.
The Stated Case
The circumstances which gave rise to the stated case are recited in the case by Justice Krever, and I reproduce them as follows:
2. On the 8th day of June, 1978, at a public hearing of the Commission, certain members of the Royal Canadian Mounted Police (“R.C.M.P.”) were called upon to testify by Commission counsel. 3. Superintendent Donald Harold Heaton (“Heaton”), and Chief Superintendent Michael Spooner, (“Spooner”) testified that, to their knowledge, medical information had been received by the R.C.M.P. on approximately 368 occasions from physicians and hospital employees in Ontario without the prior consent of the patient.
4. Corporal Glen Allan Gartshore, (“Gartshore”) testified that in January, 1976, he approached an employee of the Ontario Health Insurance Plan, (“O.H.I.P.”) and obtained without the patient’s consent, medical information in the form of the diagnostic codes submitted by the patient’s physician to O.H.I.P.
5. Commission counsel requested Heaton and Spooner to name those physicians and hospital employees from whom the R.C.M.P. had received medical information.
6. Commission counsel also requested Gartshore to name the O.H.I.P. employee from whom he had received medical information in January, 1976.
7. Counsel for the Federal Solicitor-General and the R.C.M.P. (“counsel”) objected to the questions set out in paragraphs 5 and 6 being answered.
8. Counsel reconsidered his objection as it related to the question set out in paragraph 6 and directed Spooner to disclose to me the name of the O.H.I.P. employee who delivered medical information to Gartshore in January, 1976. Spooner then did so.
9. The basis of the objection to the questions set out in paragraph 5 were as follows:
(a) in both civil and criminal litigation, the “police informer privilege” permits, in certain circumstances, a police officer to refuse to disclose the identity of an informant;
(b) physicians and hospital employees provided medical information to R.C.M.P. members without the authorization of the patient on the understanding that their identity would not be disclosed;
(c) the “police informer privilege” applied to the identity of these physicians and hospital employees; and
(d) this “police informer privilege” justified a ruling that the questions need not be answered because of the provisions of Section 11 of The Public Inquiries Act, 1971, which reads as follows:
“Nothing is admissible in evidence at an inquiry that would be inadmissible in a court by reason of any privilege under the law of evidence.” 10. Counsel conceded that the identity of the physicians and hospital employees in question was clearly within my terms of reference and relevant to the inquiry undertaken.
11. Evidence was adduced by counsel that if the R.C.M.P. were required to identify the physicians and hospital employees from whom medical information had been obtained without the patient’s authorization, difficulty would be encountered in the future in obtaining from physicians and hospital employees medical information without the consent of the patient.
Justice Krever then noted in the stated case that after hearing extensive submissions from counsel, he ruled that the police informer privilege was not applicable to his inquiry. He pointed out that none of the cases cited to him in support of the privilege were cases “in which the source of the information whose identity was protected was under an obligation not to reveal the information in question”. In his view, if the communication ought not to be made and even if communicating it is not an offence, there is no right to conceal the identity of the person who was the source of the information. Hence, he ruled that the questions objected to should be answered and that the source of the information should be given. Being thereafter requested to state a case, he put the two questions set out earlier in these reasons.
The Judgments in the Ontario Divisional Court and in the Court of Appeal
The Divisional Court answered the two questions as it did on the footing that although there was no statutory privilege to withhold the identity of the informants, there was a common law privilege under which the identity of police informers was protected in the public interest referable to police duties in the detection of crime. The Court relied on the judgment of the Ontario Court of Appeal in Reference re Legislative Privilege[2] and referred particularly to the reasons of Lacourcière J.A. for the majority who, in affirming the privilege, noted that the cases recognized one exception, namely, where in a criminal trial disclosure of the identity of the informer was material to the accused’s innocence. Reliance was also placed by the Divisional Court upon the judgment of Spence J. in Slavutych v. Baker[3], a case supporting the confidentiality (which had been promised) of a communication from a faculty member to a university president in the course of proceedings involving tenure of another faculty member.
The Divisional Court said this about the two cases:
Such cases as the two last mentioned have extended the doctrine of protection for an informer to authorities other than Crown or police officials in the strict sense. We are not aware of any decision in which that privilege, long established by the common law, with respect to police informers, has been reduced or limited, provided only that questions of good faith or the proper compass of the duty of the officer concerned were not in issue.
and it went on to say:
In our view, once it is established that the communication was made to a member of the R.C.M.P. in the course of his duty the name of the informer comes under the umbrella of privilege unless some new exception is to be made. This statement is not affected by whether the particular duty being carried out by the R.C.M.P. member is that of crime detection, crime prevention, counter-espionage or international intelligence, all of which duties are carried out by members of the R.C.M.P. from time to time and, the stated case assumes, each of the communications was made to an officer engaged in one or other of such duties.
Addressing itself then to the question whether a new exception should be made, the Divisional Court observed that “It was not argued before us that the privilege should be claimed with respect to any informer who, by the act of informing, clearly committed a breach of law, criminal or civil”. This, however, appears to have been the position taken before the Ontario Court of Appeal and it was also the position taken before this Court on the appeal to it. The Divisional Court pointed to one instance where objection to disclosure was withdrawn in respect of an employee of the Ontario Hospital Insurance Plan who was clearly prohibited under O.H.I.P. regulations from con- veying patient information without the patient’s consent.
The Divisional Court held, however, that there was merely a legislative indication of a policy against breach of confidentiality but, per contra, there was a clearly established police informer privilege under the law of evidence. There appears to have been recession by the Divisional Court from its “legislative indication” point where self-governing professions like the medical profession were concerned. Referring to The Health Disciplines Act and to Regulation 26 above-mentioned, giving power to the medical profession’s council on disciplinary authority power to determine whether any particular disclosure constitutes professional misconduct, the Court concluded that it must answer the first question in two parts. It used these words:
With respect to the identity of those physicians and hospital employees and other persons under the control and direction of the board of a hospital who divulge information from a medical record to members of the R.C.M.P. without the patient’s authorization the law recognizes no privilege which operates so as to prevent the disclosure to the Commission of their identity and the answer must be “yes”.
With respect to physicians and members of other self-governing professions with regulations regarding professional conduct similar to those we have outlined above and who at the time were acting in a professional capacity on their own responsibility and not under the direction or control of the board of a hospital the position is that there is a privilege which operates so as to prevent the disclosure to the Commission of their identity and the answer must be “no”.
In short, the Divisional Court found that despite the established police informer privilege, it did not protect the identity of hospital board employees, whether physicians or others, who disclosed information about patients in breach of confidentiality of such information. However, the Court also held that the police informer privilege did protect from disclosure the identity of those physicians who, acting in their professional capacity on their own and not under the direction of a hospital board, improperly communicated information about patients to the R.C.M.P. I confess to difficulty in understanding the distinction so made or, indeed, the basis for it and so, as I read the reasons in that Court, did the Court of Appeal. In his dissenting opinion, Justice Brooke felt that the Divisional Court was creating a new exception to the police informer privilege and that (to use his words) “evidence identifying as informers doctors and persons employed by public hospitals and doctors in private practice was inadmissible by reason of the privilege”. The learned dissenting Justice of Appeal concluded on his reading of the authorities that the police informer privilege was the privilege of the Crown or of the state and outweighed the private interest in the maintenance of the confidential relationship between doctor and patient. Moreover, Justice Brooke raised a constitutional issue in these terms:
I doubt that the provincial legislature is competent to pass legislation making admissible evidence of the identity of persons who give information to the police in the course of their investigation into crime or national security and so to displace the privilege of the Crown in that regard. This legislation did not purport to do that and I do not think that the court should attempt to do so.
Coming to the reasons of Dubin J.A., I agree with him in his denial of the distinction drawn by the Divisional Court between physicians in private practice and physicians under the direction of a hospital board. He said this on the point:
The Divisional Court appears to have been influenced in making the distinction between physicians in private practice and physicians under the direction or control of a board of governors of a hospital by reason of the penal provision in The Public Hospitals Act. I would have thought that the provisions of The Public Hospitals Act were directed towards persons who were not physicians, since the conduct of all physicians is governed by the provisions of The Health Disciplines Act. However, assuming that the provisions of The Public Hospitals Act are wide enough to encompass physicians, as has already been observed the penal provision would not appear to apply to a physician or a hospital employee acting on his own. Thus, the penal provision in The Public Hospitals Act does not appear to me to be in any way decisive. In my opinion the public policy designed to protect the confidentiality of the physician-patient relationship is as clearly expressed in The Health Disci- plines Act as it is in The Public Hospitals Act, and no distinction can be made between them on that issue. There is no reason to differentiate the position of physicians in private practice from those who are engaged by a hospital.
In dealing with the central issue of privilege, Dubin J.A. notes, correctly, that the mere fact that information supplied to the R.C.M.P. was given to them in confidence does not preclude its disclosure in judicial proceedings. Certainly, disclosure at an inquiry under The Public Inquiries Act, 1971 is within the principle. What then of the police informer privilege? As to this, Dubin J.A., after referring to it, in both case law and text, went on to say:
However, in no case, which I am aware of, has the police-informer privilege been extended to a case where the informer is in turn under a legal duty not to disclose the information to the police, or anyone else, and where the information has been obtained in breach of such duty. Nor am I aware of any case where the privilege has been extended in a manner which would frustrate a duly constituted tribunal, directed to inquire into the breaches of such duty, from fulfilling its mandate.
In his view, it was wrong to approach the case before him, as did the Divisional Court and Brooke J.A., according to whether a new exception should be made to the police informer privilege. Rather, in his words:
…it is first to be determined whether, under the circumstances disclosed in the stated case, there is a privilege under the law of evidence which would preclude the Commissioner from obtaining the relevant and admissible evidence.
In my opinion there can be no privilege when the informer in providing information to the police is in breach of a legal duty not to disclose such information.
Three other passages in the reasons of Dubin J.A. emphasize this point. First,
…in the case of a physician or a hospital employee, what emerges from the statutes hereinbefore referred to and from the common law is that there should be no disclosure unless a physician or a hospital employee is required by law to make such disclosure. Under such circumstances, in my opinion, it cannot be said that the law enforcement agencies should be encouraged to obtain such information other than by due process of law, nor should the physician or the hospital employee be encouraged to provide such information when not required to do so.
Second,
…where the informer is in breach of a duty even where no penal consequences would follow, it would be contrary to public policy to recognize the privilege asserted. The patient’s right to privacy would be an illusory one only, if the privilege were recognized under such circumstances. In my opinion a more important public interest is served by disclosure of the identity of the informer in such circumstances than by protecting the identity of the informer from disclosure.
In my respectful opinion it is not in the public interest to encourage persons who are under a duty of non-disclosure to make disclosure, and to encourage law enforcement agencies to obtain such information under those circumstances.
And, third,
The privilege asserted in this case should only be recognized when by doing so the public interest is best served. In D. vs. National Society for the Prevention of Cruelty to Children, [[1977] 1 All E.R. 589], Lord Hailsham stated at p. 605:
“The categories of public interest are not closed, and must alter from time to time whether by restriction or extension as social conditions and social legislation develop.”
The legislation under consideration by the Commissioner is designed to protect the privacy of a patient’s medical information. Once it is shown that such privacy has been invaded in a manner not authorized by law, even where well intended, the identity of the informer cannot be the subject of a privilege.
I should note that in his reasons Dubin J.A. referred to a concession by counsel for the appellants, the Solicitor General of Canada and for the R.C.M.P., that if the informer was breaking the law in the sense of doing an act for which a penalty is provided, no privilege as to the identity of the informer could be asserted. In this Court, it was said by counsel that such a concession was not made and I am content to proceed on that basis. Enlargement of the Issues in this Court
After leave to appeal was given by this Court on June 18, 1979, to bring this case here, and after notice of appeal was filed on August 5, 1979, the appellant Solicitor General of Canada applied for an order stating two constitutional questions, said to be raised in the appeal, which enlarged the issues canvassed in the Courts below. By an order dated August 8, 1979 as amended by an order of September 10, 1979, Mclntyre J. fixed the following questions:
1. Does the Public Inquiries Act, 1971, S.O. c. 49, and in particular section 7 thereof, authorize the Respondent, The Royal Commission of Inquiry into the Confidentiality of Health Records in Ontario to compel testimony from officers of the Royal Canadian Mounted Police as to the sources of information, gathered by them in the course of their investigation into crime or national security in the discharge of their duty as members of the Royal Canadian Mounted Police?
2. Where:
a) a Commission of Inquiry has been created by the Lieutenant‑Governor‑In‑Council, the subject matter of which is conceded to be properly within provincial jurisdiction, and
b) during such Inquiry the identity of persons who have breached their obligation of confidentiality under The Health Disciplines Act, 1974, S.O. 1974, c. 47, and regulations made thereunder or The Public Hospitals Act, R.S.O. 1970, c. 378 and regulations made thereunder is conceded to be relevant,
does there exist a privilege which prohibits disclosure by police of the identities of persons who furnish information to the police in the course of their investigations into crime or national security?
The first question appears to me to go beyond the compass of the facts upon which a case was stated by Mr. Justice Krever. On its face, it is not expressly related to the disclosure of health records nor to the identity of those who make the disclosure. Rather, it appears to raise, in a general way, the right of a provincial commission of inquiry (engaged, I must assume, in an inquiry on matters within provincial competence) to compel the R.C.M.P. to disclose sources of information which they have gathered in carrying out criminal and national security investigations.
As originally put in the order of August 8, 1979, the second question was as follows:
2. Can an obligation of confidentiality imposed by the Health Disciplines Act, 1974, S.O. 1974, c. 47, and regulations made thereunder by the Public Hospitals Act, R.S.O. 1970, c. 378 and regulations made thereunder operate so as to abrogate the rule of evidence in criminal matters that the names of persons who furnish information to the Police, in the course of police investigations, shall not be admitted in evidence?
I draw particular attention to the words of this question referring to “the rule of evidence in criminal matters” against disclosure of the identity of police informers. As revised by the amending order of September 10, 1979, the second question was broadened by referring to a privilege of non-disclosure of the identity of police informers without its earlier limitation to “criminal matters”.
It is desirable to make some observations here about the practice of the Court when in an appeal (that is, where leave has been given, if required, and notice of appeal has been filed) an appellant seeks to pose a constitutional question or questions said to arise in the case. An application to that end comes usually before the Chief Justice or before any other judge of the Court, and if the record appears to raise a constitutional issue or issues, an order fixing them for consideration will be made without any attempt by the Chief Justice or judge to determine at that stage that the question or questions have merit or will necessarily require an answer. Counsel applying and appearing on the application (which is usually ex parte) may be assisted or suggestions made for the formulation of the question or questions sought to be put but, this apart, the carriage of the matter (unless it is so far-fetched or unreal as to warrant a refusal) is in the hands of the applicant. It must be remembered that the Rules of the Court require that notice of any constitutional question must be given to the Attorney General of Canada, and to the respective Attorneys General of the provinces so that they may, if so moved, intervene, and intervention may also be sought by other non-parties but they can only come in by leave.
I have made those observations because I have come to the conclusion that I should not attempt to answer the first question because of the generalized way in which it has been put. There is some similarity in it to what was before this Court in Di Iorio v. Warden of the Montreal Jail[4], and it could also require an advertence to Attorney General of Quebec and Keable v. Attorney General of Canada[5], but there is not the context in Question 1 which was provided in the two cases that I have cited. This cannot be said of the second question which connects directly with the two questions posed by the Royal Commission in the stated case. My opinion is, therefore, that I should limit myself to the two questions in the stated case as also reflected in the second question posed in Justice Mclntyre’s amended order.
I am not to be taken as saying that the first question should not have been put. The parties, or at least the appellant, may have thought that the reference in it to the particular Royal Commission gave sufficient context to its otherwise general terms to make it worthy of consideration. Unlike the second question, however, it does not confine itself to health records although that may be implicit in it; and so too may be the question of identity, raised by the second question, when “sources of information” is made a pivotal point in the first question. On this view, there is substantial repetition despite the differences in formulation, and it is better therefore to proceed on the second question alone, relating as it does to the two questions in the stated case. Disposition of the Issues
It is recognized, and I have already alluded to this, that merely because information is confidential does not ordinarily preclude its disclosure in evidence when commanded in a judicial proceeding in which it is relevant. A breach of confidence may, of course, give rise to an action for breach of contract or it may have a tort aspect, as where trade secrets are concerned, but no such considerations arise here. The recent judgment of this Court in Slavutych, supra, shows that confidence may be protected by denying resort to information elicited in confidence, at least where it is sought to use the information against the person providing it. The present case is not concerned with confidential information as such but rather with a claim of privilege in which, as is common to all such claims, confidence is a key element.
What the Slavutych case established is that the categories of privilege are not closed. A similar view was expressed by the House of Lords in D. v. National Society for the Prevention of Cruelty to Children[6], where that Court preferred the phrase “public interest” to the term “privilege”. This Court, speaking through Spence J. in the Slavutych case, was of the opinion that the fourfold test propounded in Wigmore on Evidence, vol. 8, 1961 (McNaughton Rev.), p. 527, para. 2285 provided a satisfactory guide for the recognition of a claim of privilege. It is unnecessary, however, to invoke the test here. No doubt can be cast upon the existence of a police informer privilege to protect from disclosure the identity of informers whose assistance is important in the investigation and detection of crime. The rationale is clear enough; were it not so, such sources of aid to the police would dry up. The information which informers may provide is one thing and is, of course, intended to be used and disclosed. Their identity is something else, unless they choose to reveal themselves or are otherwise revealed. The important question for present purposes, however, concerns the limits of the police informer privilege. Three considerations arise. First, what must be shown to support it?