Carey v. Ontario

Carey v. Ontario
Collection
Supreme Court Judgments
Date
1986-12-18
Report
[1986] 2 SCR 637
Case number
18060
Judges
Beetz, Jean; McIntyre, William Rogers; Chouinard, Julien; Lamer, Antonio; Wilson, Bertha; Le Dain, Gerald Eric; La Forest, Gérard V.
On appeal from
Ontario
Subjects
Evidence
Notes
SCC Case Information: 18060
Decision Content
Carey v. Ontario, [1986] 2 S.C.R. 637
H. Rod Carey Appellant
v.
Her Majesty The Queen in right of Ontario, the Ontario Development Corporation, the Northern Ontario Development Corporation, Claude Bennett and Allan Grossman Respondents
indexed as: carey v. ontario
File No.: 18060.
1985: October 2; 1986: December 18.
Present: Beetz, McIntyre, Chouinard, Lamer, Wilson, Le Dain and La Forest JJ.
on appeal from the court of appeal for ontario
Evidence ‑‑ Crown privilege ‑‑ Production of cabinet and cabinet committee documents necessary to legal case ‑‑ Low level policy matter several years old and of little public interest ‑‑ Crown privilege claimed because of class of documents ‑‑ Whether court should inspect documents to decide whether Crown's claim valid ‑‑ Whether Crown's claim to immunity should be upheld.
The Government of Ontario increasingly became financially involved with Minaki Lodge, a resort in northwestern Ontario, and eventually became owner. Its dealings with appellant, the principal and later controlling shareholder of the lodge, gave rise to this action. On examination for discovery, the defendants' witnesses claimed an absolute privilege respecting all documents that went to or emanated from Cabinet and its committees. The claim was not based on the contents of the documents but on the class to which they belonged. Production, it was alleged, would breach confidentiality and inhibit Cabinet discussion of matters of significant public policy. An application to quash the subpoena duces tecum was granted, notwithstanding the judge's assumption that the documents would be relevant to the matters in issue. Both the Divisional Court and the Court of Appeal upheld that decision. At issue was whether to claim to refuse production of Cabinet documents as a class was valid, and whether it was necessary for the appellant to prove not only that the documents were relevant but also would assist his case.
Held: The appeal should be allowed.
The importance of withholding production on the basis of a public interest must be weighed against the public interest in the proper administration of justice. Protection of documents as a class was generally not favoured. There was public interest in the confidentiality of Cabinet deliberations in developing public policy, but this was only one of a number of variables to be taken into account in considering whether the interest in disclosure for the administration of justice was outweighed by other public interests. Among the variables to be weighed was the nature of the policy, whether it was contemporary or not, and the nature and importance of the action. In the present case, the information sought to be revealed concerned a particular transaction involving a low level policy matter that had taken place some thirteen years before.
Because high level documents were involved, the court should first inspect the documents to balance the competing interests in disclosing or producing them. The documents here were obviously relevant, and it was not necessary for appellant to further establish that they would assist his case.
Cases Cited
Considered: Robinson v. State of South Australia (No. 2), [1931] A.C. 704; Conway v. Rimmer, [1968] A.C. 910; Duncan v. Cammell, Laird & Co., [1942] A.C. 624; Burmah Oil Co. v. Bank of England, [1979] 3 All E.R. 700; Smallwood v. Sparling, [1982] 2 S.C.R. 686; United States v. Nixon, 418 U.S. 683 (1974); Attorney‑General v. Jonathan Cape Ltd., [1975] 3 All E.R. 484; Sankey v. Whitlam (1978), 21 A.L.R. 505; Air Canada v. Secretary of State for Trade (1983), 2 W.L.R. 494; Fletcher Timber Ltd. v. Attorney‑General, [1984] 1 N.Z.L.R. 290; referred to: R. v. Snider, [1954] S.C.R. 479; Gagnon v. Commission des valeurs mobilières du Québec, [1965] S.C.R. 73; Re Grosvenor Hotel, London (No. 2), [1964] 3 All E.R. 354; Glasgow Corporation v. Central Land Board, 1956 S.C. (H.L.) 1; Goguen v. Gibson, [1983] 2 F.C. 463; Rogers v. Home Secretary, [1973] A.C. 388; Environmental Defence Society Inc. v. South Pacific Aluminium Ltd., [1981] 1 N.Z.L.R. 146; R. and Vanguard Hutterian Brethren Inc. (1979), 97 D.L.R. (3d) 86; Smerchanski v. Lewis (1981), 31 O.R. (2d) 705; R. in Right of Alberta v. Mannix, [1981] 5 W.W.R. 343; Gloucester Properties Ltd. v. R. (1981), 24 C.P.C. 82; Lanyon Pty. Ltd. v. Commonwealth of Australia (1974), 129 C.L.R. 650.
Statutes and Regulations Cited
Canada Evidence Act, R.S.C. 1970, c. E‑10, ss. 36.1(2), 36.2(1) [both en. 1980‑81‑82‑83, c. 111, s. 4, sch. III].
Evidence Act, R.S.O. 1980, c. 145, s. 30.
Authors Cited
Williston, W. B. and R. J. Rolls. The Law of Civil Procedure, vol. 2. Toronto: Butterworths, 1970.
APPEAL from a judgment of the Ontario Court of Appeal (1983), 43 O.R. (2d) 161, 38 C.P.C. 237, 1 D.L.R. (4th) 498, 7 C.C.C. (3d) 193, affirming a judgment of the Divisional Court (1982), 39 O.R. (2d) 273, 31 C.P.C. 34, 146 D.L.R. (3d) 684, 4 C.C.C. (3d) 83, affirming a judgment of Catzman J. (1982), 38 O.R. (2d) 430, 28 C.P.C. 310, granting an application to quash a subpoena duces tecum. Appeal allowed.
J. L. McDougall, Q.C., and R. L. Armstrong, for the appellant.
T. H. Wickett, for the respondents.
The judgment of the Court was delivered by
1. La Forest J.‑‑This case involves a conflict between the public interest that a person who asserts a legal claim be afforded access to all information relevant to prove that claim, and the public interest against disclosure of confidential communications of the executive branch of government.
2. The immediate issue is whether the appellant Carey is entitled to compel production in an action against the Crown in right of Ontario and the other respondents of Cabinet documents in the possession of the executive government of the province which, he contends, would support his claim. In Ontario, this issue falls to be decided under common law.
3. The plaintiff's claim arises against the following background.
Factual Background
4. The Minaki Lodge is a tourist resort complex of some note located on the Winnipeg River a few miles north of Kenora and Lake of the Woods. In the early 1960s, Carey became associated with the controlling group then operating the lodge as a shareholder. There is dispute among the parties about the financial health of the lodge during the late 1960s, but no one questions that the tourist industry in the area was adversely affected when mercury contamination was discovered in the adjoining river system. As a result the lodge, which had operated only in the summer months, did not open in the summer of 1971 and was not scheduled to open for the summer of 1972.
5. By the fall of 1971, the Government of Ontario had become concerned about the damage resulting to the economy of northwestern Ontario from the closing of the lodge and took steps to keep it operating. Its dealing with Carey in attempting to effect this purpose is what gave rise to this action.
6. Carey alleges that in the fall of 1971, the Government offered to make good all losses of the operators through forgivable or interest‑free loans if the lodge was re‑opened. The Government, however, denies such an offer formed part of the loan assistance it was willing to extend. Carey further alleges that he accepted the alleged offer and, in reliance on it, acquired control of the lodge from his associates and re‑opened it in the summer of 1972. What is more, he adds, he kept it open at the Government's encouragement during the whole of the following winter and thereby incurred considerable losses for which the Government did not fully reimburse him. He claims he then advised the Government the lodge would be closed for the winter of 1973‑1974 but the Government asked him to keep it open pending the completion of a feasability study. The Government denies making any such request.
7. According to Carey, in November 1973 the Government told him it wished to continue the operation of the lodge and to invest a large sum of money in it so as to make the resort a centerpiece for the resort industry in the area. However, he adds, since it would be politically inexpedient to provide funds to a private owner, the Government proposed to become his partner. Carey says he agreed to this proposal and accordingly continued to operate the lodge, incurring very substantial monthly operating losses which were not absorbed by the Government except to the extent necessary to enable him to meet current payments. These allegations are also denied by the Government, which claims that all financial assistance provided to the appellant from 1971 to 1973 was through loans arranged with the Ontario Development Corporation.
8. In late 1973 or early 1974, a meeting was held between Carey and the Minister of Industry and Tourism and a number of officials including some of the Northern Ontario Development Corporation. Carey claims he was told the Government had decided to invest over $5 million in the lodge, and that he could either have it go into receivership and see its staff and creditors go unpaid or assign his interest to the Ontario Development Corporation. The Government agrees that there was a discussion of the financial difficulties of the lodge and of the available options. At all events, the appellant accepted a written offer from the Ontario Development Corporation for the transfer of his shares on the understanding that the Corporation would assume all the owners' outstanding indebtedness, except shareholders' loans. Apparently as part of these arrangements, the appellant later signed a three‑year consulting contract with the resort company for which he was to be paid some $15,000 a year. Carey asserts that he assigned his interests under the threat of receivership and its consequences. The Government, however, denies that he acted under any duress or compulsion.
The Action and Demand for Production
9. Some two years later, in March 1976, Carey brought the present action seeking damages, including exemplary damages, for breach of the alleged agreement, deceit and damage to reputation, the setting aside of the transfer on the grounds of duress and compulsion and as an unconscionable transaction, and a declaration that the appellant is the beneficial owner of the shares transferred by him. The action against the individual defendants was subsequently dismissed with consent, so only the Government and the two corporations remain as defendants.
10. On examination for discovery, the defendants' witnesses claimed an absolute privilege respecting all documents that went to Cabinet and its committees and all documents that emanated from it. When, in June of 1982, a date was fixed for trial, a subpoena duces tecum was served on the Secretary of the Cabinet for Ontario, Dr. E. E. Stewart, requiring him to attend at trial and bring all documents relating to the proceedings described in the subpoena. The Government then applied to quash the subpoena, and in support of the application filed an affidavit sworn by Dr. Stewart in which he acknowledged that he had relevant documents under his control but objected to their production on the basis that "it would not be in the public interest to produce these documents, or to make them available for inspection, even for the limited purposes of this litigation." By s. 30 of the Ontario Evidence Act, R.S.O. 1980, c. 145, such objection has the like effect as if it were made by a member of the Executive Council of the Province.
11. Dr. Stewart listed the documents in two schedules to his affidavit. The first schedule lists documents in the possession of his office at the time the subpoena was served on him. The second lists those formerly in his office but now in the possession of the archives where they would normally be kept confidential and unavailable for public access for a period of thirty years.
12. The affidavit claims privilege against disclosure of all these documents except a few orders in council and formal minutes of the Management Board. The claim of privilege is not based on the contents of these documents, which are not revealed, but on the class to which they belong, i.e. documents prepared for Cabinet, or that emanated from Cabinet, or that record its proceedings or those of its committees. These may compendiously be described as "Cabinet documents", although there may in some circumstances be ground for making a distinction between them.
13. The basis of the claim for the privilege against production of the documents is set forth in the following excerpts from the affidavit:
...it is my firm opinion that it has consistently been assumed and taken for granted at all material times by all members of the Executive Council, and by all members of the staff of the Cabinet office, that all of the discussions in the Executive Council are private and confidential, and will not be published or revealed to any persons who are not members of the Council. It has also been consistently realised and appreciated by all members of the Council that the decisions taken by it are collegial or group decisions, for each of which they all share responsibility.
It is also my firm opinion that it has consistently been assumed by the members of the Executive Council, and by the staff of the Cabinet office and the various government ministries, that documents prepared by sub‑committees of the Cabinet for use by the Cabinet, and documents prepared by ministries or other government organizations for use by the Cabinet are privileged and confidential and will not be made public.
I have read and reviewed the documents listed in Exhibit 1 for which privilege is claimed. In my considered opinion, for the reasons set out below, it would not be in the public interest to produce these documents, or to make them available for inspection, even for the limited purposes of this litigation.
The notes kept by members of Cabinet staff of the discussions at Cabinet meetings do not purport to be complete, and do not indicate the basis upon which any individual member, or the Executive Council itself, formed a decision. They indicate certain points raised by individual members of Cabinet, and more importantly, they record the decisions reached by Cabinet....
It is my firm opinion that if these notes of the discussions in the Executive Council were to be produced, it would almost necessarily lead to a distorted, incomplete and inaccurate impression of the nature of the actual discussion which took place. It is also my opinion that if these notes were produced, it would in future affect the nature of the discussions in Cabinet, and would inhibit the freedom of the members of Cabinet to discuss matters of significant public concern and policy, to the detriment of the public interest.
The Courts Below
14. Catzman J. of the Supreme Court of Ontario (1982), 38 O.R. (2d) 430, 28 C.P.C. 310, assumed without deciding that the documents in question would be relevant to the matters in issue between the parties to the litigation. However he ordered that the subpoena duces tecum be quashed and set aside largely on the basis of the Ontario Court of Appeal decision in Smerchanski v. Lewis (1981), 31 O.R. (2d) 705 where it was stated, at p. 711, that documents relating to Cabinet proceedings are by their nature generally acknowledged to be privileged. For this and other reasons, he also rejected the suggestion that he inspect the documents privately so as to determine where the balance of public interest lay.
15. An appeal to the Divisional Court for Ontario was dismissed: (1982), 39 O.R. (2d) 273, 31 C.P.C. 34, 146 D.L.R. (3d) 684, 4 C.C.C. (3d) 83. White J., who gave the judgment of the Court, held, citing inter alia, Smerchanski v. Lewis, that Cabinet documents are presumed to be privileged under the doctrine of Crown privilege or public interest immunity in the absence of special circumstances, such as an allegation of criminal activity, malfeasance, misfeasance, nonfeasance, irregularity or other improprieties in the conduct of the members of the Cabinet or those reporting to the Cabinet, of which the documents in issue would be proof. In his view, the onus of establishing such circumstances is on those who seek production of the documents. Carey would have to discharge this onus before the court would look at the documents and embark on the process of weighing the interest in the confidentiality of executive or Cabinet deliberations against the interest in making available all relevant evidence to a court.
16. On the appeal to the Court of Appeal of Ontario (1983), 43 O.R. (2d) 161, 38 C.P.C. 237, 1 D.L.R. (4th) 498, 7 C.C.C. (3d) 193, that court rejected the "very special circumstances" rule propounded by the Divisional Court. It, however, dismissed the appeal for reasons set forth in the judgment of Thorson J.A. After an extensive examination of the case law, he concluded that the Crown (i.e. the provincial Government) had no absolute privilege or immunity from disclosure of documents based on either their content or class. The Crown could, however, claim protection of certain documents from disclosure on the basis of a specified public interest. Where such a claim is properly made, he stated, it will prevail unless the party seeking their production can persuade the court that there are cogent and concrete grounds that will substantially assist his case, that the issue to which the documents are relevant is one of real substance and is not raised merely to gain access to the documents, and that it is unlikely that the facts sought to be established by the documents can be otherwise proved. Only after this is done will the court proceed to examine the documents with a view to balancing the competing interests. In the case at hand, concrete and cogent grounds had not been presented. Nor had sufficient time elapsed to remove concern about the publication of the documents.
17. Although it did not have to deal with the issue in view of the conclusion it had arrived at, the Court thought it desirable to comment on the submission made on behalf of the Government that where a court decided to order an inspection, the Government should have a right to appeal before the court proceeded to act on that order, and if the Court of Appeal made such an order, the Government should be given an opportunity to seek leave to appeal to this Court. The Court of Appeal disagreed with this contention on the ground that it knew of no procedure by which this could be done and because of the practical consequences that could ensue from allowing this argument to prevail.
18. Leave to appeal to this Court was granted on December 3, 1983, [1983] 2 S.C.R. vi.
Grounds of Appeal
19. Counsel for Carey contends that the Court of Appeal erred
(a) in finding that Dr. Stewart's affidavit was sufficient to support the claim for non‑disclosure despite the fact that it did not specify any special circumstances or particular damage to the public interest;
(b) in its formulation of the test to be applied in determining the circumstances in which the Crown will be obliged to produce Cabinet and other important documents at trial;
(c) in that it established the requirements to be met by a party seeking production of Crown documents relying, in large part, upon the English authorities which in turn relied upon the English rules of practice which have no equivalent in the provinces or territories of Canada.
20. Counsel for the respondents specified that the claim of privilege was put forward solely on the basis of the class of documents in issue and not on the basis of content. He further contended that the Court of Appeal erred in stating that the Government did not have a separate right to appeal from an order that the documents be inspected.
21. I do not propose to enter into the latter point in any detail, but I shall only make the following brief remarks. Appeals are creatures of statute, and counsel did not draw our attention to any statute permitting an appeal to the Court of Appeal from an order for inspection. He simply relied on English and New Zealand cases, which as Thorson J.A. remarked may rest on a different statutory basis. So far as the jurisdiction of this Court is concerned, it is premature to discuss the issue until it arises. I might say, however, that I am impressed with the practical implications mentioned by Thorson J.A. militating against permitting appeals to be heard on issues of this kind until the final disposition of the action. This is especially true in view of the fact that a special procedure has been provided for dealing with the really sensitive issues such as international relations and national defence and security; see Canada Evidence Act, R.S.C. 1970, c. E‑10, ss. 36.1(2), 36.2(1), as enacted by S.C. 1980‑81‑82‑83, c. 111, s. 4, sch. III.
General Legal Background
22. It is obviously necessary for the proper administration of justice that litigants have access to all evidence that may be of assistance to the fair disposition of the issues arising in litigation. It is equally clear, however, that certain information regarding governmental activities should not be disclosed in the public interest. The general balance between these two competing interests has shifted markedly over the years. At times the public interest in the need for government secrecy has been given virtually absolute priority, so long as a claim to non‑disclosure was made by a Minister of the Crown. At other times a more even balance has been struck.
23. This difference in emphasis resulted in part from the manner in which the interests collided in particular cases. The need for secrecy in government operations may vary with the particular public interest sought to be protected. There is, for example, an obvious difference between information relating to national defence and information relating to a purely commercial transaction. On the other side of the equation, the need for disclosure may be more or less compelling having regard to the nature of the litigation (e.g. between a criminal and civil proceeding) and the extent to which facts may be proved without resort to information sought to be protected from disclosure.
24. The shift in the balance between the two interests has also been affected by changing social conditions and the role of government in society at various times. When the early cases were decided, the activities of government were restricted to larger political issues. There was no general right to sue the Crown. The issue, therefore, did not frequently arise and when it did, it was often in the context of a suit between private litigants. In that period, it would appear, the tendency of the Crown was to produce evidence requested by litigants in the absence of some compelling reason that could not be disregarded; see the authorities cited by Lord Blanesburgh in Robinson v. State of South Australia (No. 2), [1931] A.C. 704 (P.C.), at p. 714.
25. With the expansion of state activities into the commercial sphere, different attitudes to suits against the Crown developed and statutes were enacted to make these possible. The general social context also affected attitudes towards government secrecy. One can scarcely expect the views on this issue to be the same in wartime conditions when the total energy of the nation must be concentrated on winning the war, and an era of peace in which government activity impinges on every aspect of our lives and there is in consequence increased demands for more open government. The question, as Lord Upjohn noted in Conway v. Rimmer, [1968] A.C. 910 at p. 991, is one that invites periodic judicial reassessment. Not surprisingly, conflicting dicta can scarcely be reconciled.
26. The widely divergent views on the subject may conveniently be illustrated by the two cases that first gave rise to the modern debate on the subject, Robinson v. State of South Australia, just cited, before the Privy Council, and Duncan v. Cammell, Laird & Co., [1942] A.C. 624, before the House of Lords.
27. In Robinson's case, Robinson sued the State of Australia for the amount of damage that had resulted to his wheat in the possession of the State under wheat marketing legislation. The damage, it was alleged, resulted from the negligence of the agents of the State who handled the wheat. To establish his case, Robinson sought and obtained an order to obtain full discovery of all documents in the possession of the State relating to the matters in controversy. By affidavit, however, the State claimed that 1,892 State documents were privileged since their disclosure would be contrary to the interests of the State. The documents were said to comprise communications between officers administering the departments concerned.
28. The Privy Council decided against the State's claim for non‑disclosure. The documents claimed, it said, were vital to the plaintiff's case. Besides, the privilege claimed was a narrow one to be exercised sparingly, and no further than was necessary for the protection of public interests. Lord Blanesburgh noted that the documents did not relate to the political activities of the State, but to its trading, commercial or contractual activities. While documents relating to the latter might properly not be disclosed in order to safeguard genuine public interests, the increasing extension of state activities into the spheres of business and commerce coupled with the apparently free use of the claim of privilege in relation to claims arising out of these activities, made it imperative for the courts to see to it that the scope of the privilege in such litigation should not be extended. The fact that production of the documents might prejudice the Crown's case or assist the plaintiff's did not justify the claim of privilege. "In truth", he added, "the fact that the documents, if produced might have any such effect upon the fortunes of the litigation is of itself a compelling reason for their production‑‑one only to be overborne by the gravest considerations of State policy or security" (p. 716).
29. The Board noted that a court has always had the power to inquire into the nature of the document for which protection is sought and to require some indication of the injury the State would suffer from its production. In performing this task, it added, the court may inspect the documents privately, particularly in cases where the State itself is a party. In the result, the Board concluded that the proper course there was to remit the matter to the court that heard the case with directions that it was a proper one for exercising its power to inspect the documents.
30. Eleven years later, in 1942, the House of Lords refused to follow the Robinson case in Duncan v. Cammell, Laird & Co., supra. There the submarine Thetis, which the respondents had built for the Admiralty, sank while undergoing its submergence test, and an action in negligence was brought by representatives and dependents of those who had died in the mishap. The Crown objected to the production of several documents which revealed the structural specifications of the submarine and its condition when raised. The objection having been made in proper form, the House upheld it without any inspection of the documents.
31. The case was undoubtedly correctly decided. A properly framed affidavit by a Minister of the Crown objecting to giving information about the structure of equipment intended for the defence of the country must surely be treated with the utmost deference, especially in wartime. Lord Blanesburgh in Robinson's case had noted that the documents should not be inspected where this could have the effect of itself defeating the reasons for which a privilege was claimed.
32. What puts the Duncan case at odds with its predecessor, however, was the view taken of the respective roles of the courts and of the Crown in dealing with claims for the production of state documents. In Robinson's case the court's role was given pre‑eminence. In Duncan, by contrast, the House made it clear that a ministerial objection, properly made, was conclusive. The House expressly disapproved of the order for inspection granted in Robinson's case.
33. No longer bound by English authority, this Court soon began to dissociate itself from some of the more absolute statements in Duncan's case. In R. v. Snider, [1954] S.C.R. 479, the Court, at the request of the prosecution, allowed production of, and oral evidence respecting, the income tax returns of the accused despite the objection of the Minister of National Revenue. The Court there clearly reiterated "the general principle that in a court of justice every person and every fact must be available to the execution of its supreme functions" in the absence of a public interest recognized as overriding it (see Rand J. at p. 482).
34. A similar approach was taken in Gagnon v. Commission des valeurs mobilières du Québec, [1965] S.C.R. 73. There the Attorney General of Quebec objected on the basis of public interest to the Secretary of the Commission's divulging in the course of bankruptcy proceedings a letter written to the Commission by the bankrupt regarding the business of the bankrupt, but the Court refused to uphold this objection. By this time, the English courts themselves had begun to move away from the approach adopted in Duncan's case; see Re Grosvenor Hotel, London (No. 2), [1964] 3 All E.R. 354 (C.A.) Fauteux J., who gave the judgment of the majority of this Court, referred to the latter case in concluding that the courts had the final say in deciding between the conflicting demands of the litigant and the state, or at least in determining whether a ministerial objection is well founded. He conceded that such objection would obviously be well founded in the case of military secrets, diplomatic relations, Cabinet papers and high level political decisions. But the courts' power, though it must be prudently exercised, remained nonetheless. The facts, he added, will vary from case to case; each must be determined on its own merits.
35. It was left to the House of Lords in Conway v. Rimmer, supra, in 1968, to dispose of the more excessive views in Duncan's case and to bring English law in line with that of Canada and other parts of the Commonwealth as well as that of Scotland; for the latter, see Glasgow Corporation v. Central Land Board, 1956 S.C. (H.L.) 1. In Conway, a probationary constable brought action for malicious prosecution against his former superintendent. In the course of discovery, the latter revealed relevant documents in his possession which included four reports made by the defendant during the plaintiff's probationary period and a report by him to his chief constable for transmission to the Director of Public Prosecutions in connection with the prosecution of the plaintiff on a criminal charge, on which he was acquitted and on which the civil action was based. The Secretary of State for Home Affairs objected in proper form to the production of these documents on the ground that they fell within a class of documents the production of which would be injurious to the public interest. The House of Lords held that the documents should be produced for inspection and if it was found that disclosure would not be prejudicial to the public interest or that the possibility of such prejudice was insufficient to justify their being withheld, disclosure should be ordered.
36. The House firmly rejected the notion that the Minister's statement was final and conclusive. It was the courts that must determine the balance to be struck between the public interest in the proper administration of justice and the public interest in withholding certain documents or other evidence. Proper deference should, of course, be given to the Minister's views, particularly in relation to objections to production of particular documents on the basis of their contents, or where the Minister's reasons involve considerations that cannot properly be weighed on the basis of judicial experience. But class documents are often not of this character. For example, it noted, a court is certainly able to assess whether candour in making a report would likely be lessened by the possibility of its revelation in judicial proceedings.
37. In assessing whether documents should be produced or not, the court could in some cases come to a decision one way or the other on the basis of the Minister's statement alone, but in case of doubt the judge could inspect them.
38. The public interest in the non‑disclosure of a document is not, as Thorson J.A. noted in the Court of Appeal, a Crown privilege. Rather it is more properly called a public interest immunity, one that, in the final analysis, is for the court to weigh. The court may itself raise the issue of its application, as indeed counsel may, but the most usual and appropriate way to raise it is by means of a certificate by the affidavit of a Minister or where, as in this case, a statute permits it or it is otherwise appropriate, of a senior public servant. The opinion of the Minister (or official) must be given due consideration, but its weight will vary with the nature of the public interest sought to be protected. And it must be weighed against the need of producing it in the particular case.
39. In the end, it is for the court and not the Crown to determine the issue. This was recently re‑affirmed by this Court in Smallwood v. Sparling, [1982] 2 S.C.R. 686, to which I shall return. The opposite view would go against the spirit of the legislation enacted in every jurisdiction in Canada that the Crown may be sued like any other person. More fundamentally, it would be contrary to the constitutional relationship that ought to prevail between the executive and the courts in this country.
The Affidavit
40. In making a claim of public interest immunity, the Minister (or official) should be as helpful as possible in identifying the interest sought to be protected. Examples of how this should be done appear in Burmah Oil Co. v. Bank of England, [1979] 3 All E.R. 700 (H.L.), and Goguen v. Gibson, [1983] 2 F.C. 463 (C.A.), where the Minister described with as much detail as the nature of the subject matter would allow the precise policy matters sought to be protected from disclosure.
41. Counsel for Carey argued that Dr. Stewart's affidavit is inadequate in that it does not set forth with sufficient particularity the interests sought to be protected. I suppose the point may be put in this way. Certainly the grounds advanced for protection are, as some cases have put it, somewhat amorphous and as Thorson J.A. pointed out, less helpful than they might be. Nonetheless, it seems to me that Thorson J.A. was correct in his view that in substance what was sought was the protection as a class of what he generally described as "Cabinet documents", i.e. documents prepared by government departments and agencies in formulating government policies, decisions made by Cabinet, and the like. That being so, Dr. Stewart did not see it as necessary to particularize the nature of the information sought to be protected as would be necessary if the claim for protection was based on the nature of the contents of the documents. Essentially what the certificate argues is that the process by which government policy is determined by the Executive Council must remain confidential whatever the policy may be and however much time (save when it has become of historical interest only) has elapsed since the policy was developed. I refer in confirmation to the paragraphs of Dr. Stewart's affidavit already cited.
42. So viewed, the question is not so much whether the affidavit is insufficient as whether the substance of the claim is one to which the courts should give effect. Counsel for the Government put it that the issue raised was a simple question of principle. In short, may the documents be withheld from production simply because they are Cabinet documents as above described, at least where those documents are concerned with the formulation of government policy by the Cabinet? If one replies to this broad question in the negative, it may be necessary to ask whether the documents should be withheld because of the particular policy to which they refer. In that case it would be the duty of whoever makes the affidavit to give the court all the help he reasonably can. But if the question is answered in the affirmative, that would be an end to the matter. I shall, therefore, attempt to reply to the "simple question of principle" counsel for the Government asked us to address.
Rationale for Non‑disclosure of Cabinet Documents
43. Generally speaking, a claim that a document should not be disclosed on the ground that it belongs to a certain class has little chance of success. Claims to secrecy for some classes of documents have, however, traditionally been considered valid, notable among these being documents relating to national defence or security and those regarding diplomatic relations with other countries. To some extent, though, claims regarding these documents, and particularly those dealing with defence or security, may be looked upon as akin to a "contents" claim. That, however, cannot be said of Cabinet documents which the cases have frequently considered as meriting the same type of protection as documents relating to national defence and diplomatic communications. That was done even in Conway v. Rimmer and in Gagnon v. Commission des valeurs mobilières du Québec, supra, despite the fact that the general thrust of these cases strongly favoured disclosure. Indeed in Conway's case, the impression left is that Cabinet documents should never be revealed. But it was not necessary in those cases to decide the issue and it becomes essential to analyse the reasons underlying the claim.
44. The principal argument for withholding the documents described in the affidavit is that their disclosure would lead to a decrease in completeness, in candour and in frankness of such documents if it were known that they could be produced in litigation and this in turn would detrimentally affect government policy and the public interest. The familiar "candour argument" is combined with the need of completeness and the fear that the freedom of Cabinet members to discuss matters of significant public concern and policy might be diminished. This may simply mean that the setting in which confidential statements are made may make them different in kind from others.
45. At all events, the Government's counsel in his factum put it on the following basis. The principles of joint responsibility of the members of Cabinet, and of Cabinet solidarity, are basic to Canadian constitutional law and must be maintained and preserved in the public interest. These principles, he added, would be prejudiced by disclosure of the documents and information sought to be produced in these proceedings. In Canada, the United Kingdom and elsewhere in the Commonwealth, he maintained, Cabinet documents have consistently been accorded a high degree of protection against disclosure and courts will order them inspected or produced only in the most exceptional and unusual circumstances.
46. I am prepared to attach some weight to the candour argument but it is very easy to exaggerate its importance. Basically, we all know that some business is better conducted in private, but generally I doubt if the candidness of confidential communications would be measurably affected by the off‑chance that some communication might be required to be produced for the purposes of litigation. Certainly the notion has received heavy bat