The Queen v. Snider

The Queen v. Snider
Collection
Supreme Court Judgments
Date
1954-06-21
Report
[1954] SCR 479
Judges
Rinfret, Thibaudeau; Kerwin, Patrick; Taschereau, Robert; Rand, Ivan Cleveland; Kellock, Roy Lindsay; Estey, James Wilfred; Locke, Charles Holland; Cartwright, John Robert; Fauteux, Joseph Honoré Gérald
On appeal from
British Columbia
Subjects
Evidence
Decision Content
Supreme Court of Canada
The Queen v. Snider, [1954] S.C.R. 479
Date: 1954-06-21
In The Matter of A Reference Under The Constitutional Questions Determination Act, R.S.B.C. 1948, c. 66.
and
In The Matter of Regina v. Snider.
1953: December 3, 4, 7; 1954: June 21.
Present: Rinfret C.J. and Kerwin, Taschereau, Rand, Kellock, Estey, Locke, Cartwright and Fauteux JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Privileged documents—Evidence—Production of income tax returns sought in a criminal prosecution—Objection by Minister—Whether contrary to public policy—Income War Tax Act, R.S.C. 1927, c. 97, s. 81.—Income Tax Act, 1948, S. of C. 1948, c. 52, s. 121.—Excess Profits Tax Act, 1940, S. of C. 1940.
At a trial under the Criminal Code, the Crown in the right of the Province subpoenaed the Director of Taxation of the District of Vancouver requiring him to give evidence and to produce the income tax returns of the accused. The Minister of National Revenue, in an affidavit, objected to the production of the documents and to the giving of oral evidence, basing his claim that it would be prejudicial to the public interest on s. 81 of the Income War Tax Act and on s. 121 of the Income Tax Act, which prohibit such communications to any person other than a person "legally entitled thereto".
Consequent to the ruling of the trial judge that the returns must be produced and, if relevant, given in evidence, the following questions were submitted for the opinion of the Court of Appeal for British Columbia pursuant to the Constitutional Questions Determination Act, R.S.B.C. 1948, c. 66:
1. On the trial of a person charged with an indictable offence, where a subpoena duces tecum has been served on the appropriate Income Tax official to produce before the Court on such trial returns, reports, papers and documents filed pursuant to the provisions of the Income Tax Act, and the Income War Tax Act or the Excess Profits Tax Act, 1940, and to give evidence relating thereto, and where the Minister of National Revenue has stated on oath that in his opinion such evidence and the production of such returns, reports, papers and documents would be prejudicial to the public interest; ought such Court to order the production of such returns, reports, papers and documents and the giving or oral evidence relating thereto: (a) when such subpoena is served at the instance or on behalf of the Attorney General of the Province; (b) when such subpoena is served at the instance or on behalf of the accused?
2. Are the documents hereinbefore mentioned in Question 1, for the purposes of a subpoena duces tecum directed to an Income Tax Official of the Income Tax Department, in the possession of the said official to the extent that the Court may order them produced in Court pursuant to the said subpoena, or are the said documents in the possession of the Crown?
3. Do Sections 81 and 121 of the Income War Tax Act and the Income Tax Act, 1948, respectively affect the right of the Minister of National Revenue to object on the ground of prejudice to the public interest to the production of the documents hereinbefore mentioned in Question 1 and to the giving of oral evidence by an Income Tax official relating to returns made under the said Acts?
On appeal to this Court, it was held:
1. (Per Rinfret C.J., Kerwin, Taschereau, Rand, Kellock, Estey and Fauteux JJ.) That the Court may order the production of the documents in question and the giving of oral evidence relating thereto, unless special facts or circumstances appearing in the Minister's affidavit make it clear to the Court that there might be prejudice to the public interest in the disclosure, but only to the extent of the document or documents within the special facts or circumstances.
2. (Per Locke J.) That the Court may order the production of the documents in question and the giving of oral evidence relating thereto to enable the Court to determine whether the facts discoverable by the production of the documents would be admissible, relevant or prejudicial or detrimental to the public welfare in any justifiable sense.
3. (Per Cartwright J.) That the Court may order the production of the documents in question and the giving of oral evidence relating thereto, limited however to a case in which the objection of the Minister is to the production of any documents belonging to the class consisting of returns, reports, papers and documents filed pursuant to the provisions of the Income Tax Act, the Income War Tax Act or the Excess Profits Tax Act, 1940, on the ground that they belong to that class.
4. (Per Curiam) That for the purposes of a subpoena duces tecum directed to an Income Tax Official of the Income Tax Department, the documents in question are in the possession of such official to the extent that the Court may order them produced in Court pursuant to a subpoena.
5. (Per Rinfret C.J., Kerwin, Taschereau, Rand, Kellock, Estey, Cartwright and Fauteux JJ.) That the Minister has no right to object to the production of the documents in question.
6. (Per Locke J.) That neither s. 81 of the Income War Tax Act or s. 121 of the Income Tax Act, 1948, affect the right of the Minister to object on the ground of public interest to the production of such documents in criminal proceedings and the giving of evidence relating thereto, but the effect of the sections is to render the objections subject to the discretionary jurisdiction and consequent order of the trial judge as set forth in the answer to Question 1.
APPEAL from the judgment of the Court of Appeal for British Columbia[1] in the matter of a reference under the Constitutional Questions Determination Act, R.S.B.C. 1948, c. 66, in respect of the production in Court of Dominion Income Tax returns in a criminal prosecution.
F. P. Varcoe, Q.C. and D. H. W. Henry for the Attorney General of Canada.
L. Kelley, Q.C. and J.J. Urie for the Attorney General of British Columbia.
The judgment of Rinfret C.J. and of Rand J. was delivered by:—
RAND J.:—This reference raises an important question of the right of the Minister of National Revenue to object to the production before a court of the income returns of a person charged in criminal proceedings; and since there are many aspects to the general question of privilege claimed by the Crown in relation to which different considerations must be taken into account, I think it desirable to keep within the boundaries which the facts in this case have set for us. As the matter relates to evidence sought by either the Crown or the accused in a criminal prosecution, it is to be distinguished formally from a similar step in civil proceedings.
As Mr. Varcoe seemed to put it, any document coming into the hands of persons engaged in the work of any branch of the Executive, is ipso facto, on the ground of public policy, exempt from production on the objection of the departmental minister and for that proposition he cited many authorities concluding with that of Duncan v. Cammell Laird & Company[2]. When these authorities are closely examined, however, it will be found that they cannot be taken to proceed on any principle so broadly stated, and it becomes necessary, then, to enquire into the nature of testimonial privilege against disclosure and the grounds on which it is made effective in legal proceedings.
What is in debate are confidential communications and, for a better understanding of the question, the distinction is to be kept in mind between them and the matter which they deal with or express, that is, there may be confidential or secret matter apart from that of the communications themselves but to which they relate, or the secrecy may exist as to the matters which the communications themselves create or indeed to the fact of the communication alone. It requires as its essential condition that there be a public interest recognized as overriding the general principle that in a court of justice every person and every fact must be available to the execution of its supreme functions. As Lord Chancellor Hardwicke, in speaking against the Bill For Indemnifying Evidence, Cobbett's Parliamentary History 12, 675, 693, 1742, declared:—
It has, my lords, I own, been asserted by the noble duke that the public has a right to every man's evidence—a maxim which in its proper sense cannot be denied. For it is undoubtedly true that the public has a right to all the assistance of every individual.
And this applies as fully to the private suitor or an accused as to the public. The privilege is one to be asserted by or on behalf of a person or persons including the Crown to whose benefit it enures, and it may be waived only by the beneficiary; if the disclosure is proposed in a proceeding between third parties, the court itself must interpose to safeguard the privilege.
It springs, then, from a confidential communication coupled with a paramount public interest in permitting the secrecy surrounding the communication or its contents to be maintained. This is perhaps best illustrated by the privilege relating to communications between husband and wife or between solicitor and client. The public interest in the latter relationship lies in securing to every citizen the skill and ability of a professional class to enable him to protect his own interest in life, liberty and property within the law and before its tribunals. If that means were not, in the widest sense, made available to him he would be denied that justice which it is a fundamental object of our political organization to secure to him. The client may, therefore, in absolute freedom, disclose to his solicitor the details of his business or personal matters on which he seeks legal advice or action, and upon that communication the law places the seal of confidence which only the client himself can remove. Of a similar nature are communications by an informer to public enforcement officers and those between officers of state on national or international matters expressing views or making proposals on governmental policy which may affect the peace or safety of the country and which the ministers of the Crown may even be sworn not to disclose. There may also be external matters such as of defence which equally, for the same reasons, must be held to be within that safeguard, the facts of which may, in the discretion of ministers or government, be disclosed as considered desirable. Is there, then, a privilege of that nature here? If so, to whom does it run and what is the public policy supporting it?
It is claimed that the circumstances give rise to such a privilege in the Crown and that the public interest emanates from an undertaking on its part, implied by the Income Tax Act, toward all income taxpayers that the contents of the returns of none of them will be revealed beyond the circle of officials concerned in administering the statute. Sec. 121 of that Act forbids the disclosure of and information obtained under it to any person "not legally entitled thereto". For the purposes of his argument, however, Mr. Varcoe puts that aside as being irrelevant to the proposition urged.
I am unable to agree with either of these contentions. I can find nothing in the statute indicating such an undertaking. The disclosure of a person's return of income for taxation purposes is no more a matter of confidence or secrecy than that, say, of his real property which for generations has been publicly disclosed in assessment rolls. It is in the same category as any other fact in his life and the production in court of its details obtained from his books or any other source is an everyday occurrence. The ban against departmental disclosure is merely a concession to the inbred tendency to keep one's private affairs to one's self. Now that, in this competitive society, is a natural and unobjectionable tendency but it has never before been elevated to such a plane of paramount concern. The most confidential and sensitive private matters are daily made the subject of revelation before judicial tribunals and it scarcely seems necessary to remark on the relative insignificance to any legal or social policy of such a fact as the income a man has been able to produce. I should say, therefore, that the only privilege furnished is that given by the statute and that it is a privilege for the benefit of the individual and not the Crown.
The prohibition of the statute is against disclosure to others than the departmental staff charged with the assessment but since the public interest in the administration of justice transcends that of any individual in the details of his ledger account, the ban is to be taken to be directed against a voluntary disclosure only and has no application to judicial proceedings. The intervention of the minister, as would be that of the person himself, is therefore ineffectual.
The second question of the reference suggests a distinction between possession of the Crown and by departmental officials administering the Act. The "Crown" as used in this sense is assumed to carry with it some mystical character which removes the case from the level on which taxation takes place. Where in constitutional or high governmental functions the prerogative or even statutory power is exercised in relation to the possession of a document whether personally by the Sovereign or by means of secretaries, ministers, or other high officers of state acting themselves or through subordinate officers, there are or may be undoubtedly elements that give the possession a special character. But here is a statute providing for the assessment and collection of taxes by an administrative department which the statute itself sets up. The subject is placed in communication with the officials of that department in immediate relation to a function that directly and individually affects his private financial affairs. Neither the prerogative nor any constitutional or political function is involved. To suggest that either in the case of protecting or attacking the private interest of the taxpayer the custody of tax returns rendered to the department can be refused production on the ground of the nature of the possession is to attract some vague magic sensed or associated with the prerogative to the routine of administrative government. All governmental and administrative activity may be said to be carried out by the Executive but it is not in these levels of administration, which might extend to every clerk, say, of a government railway, that any degree or shade of possession in the course of executive action is, by a reference to the Crown, to be placed beyond the reach of the courts.
Once the nature, general or specific as the case may be, of documents or the reasons against its disclosure, are shown, the question for the court is whether they might, on any rational view, either as to their contents or the fact of their existence, be such that the public interest requires that they should not be revealed; if they are capable of sustaining such an interest, and a minister of the Crown avers its existence, then the courts must accept his decision. On the other hand, if the facts, as in the example before us, show that, in the ordinary case, no such interest can exist, then such a declaration of the minister must be taken to have been made under a misapprehension and be disregarded. To eliminate the courts in a function with which the tradition of the common law has invested them and to hold them subject to any opinion formed, rational or irrational, by a member of the executive to the prejudice, it might be, of the lives of private individuals, is not in harmony with the basic conceptions of our polity. But I should add that the consequences of the exclusion of a document for reasons of public interest as it may affect the interest of an accused person are not in question here and no implication is intended as to what they may be.
What is secured by attributing to the courts this preliminary determination of possible prejudice is protection against executive encroachments upon the administration of justice; and in the present trend of government little can be more essential to the maintenance of individual security. In this important matter, to relegate the courts to such a subserviency as is suggested would be to withdraw from them the confidence of independence and judicial appraisal that so far appear to have served well the organization of which we are the heirs. These are considerations which appear to me to follow from the reasoning of the Judicial Committee in Robinson v. South Australia[3].
I would therefore answer the questions as follows:—
Question I:
(a) and
(b)
Yes, unless special facts or circumstances appearing on the minister's affidavit make it clear to the court that there might be prejudice to the public interest in the disclosure, but only to the extent of the document or documents within the special facts or circumstances.
Question II:
The documents are in the custody of officials to the extent that the court may order them produced in court pursuant to subpoena.
Question III:
The minister has no right to object to the production of the documents.
Subject to the variation indicated, the appeal must be dismissed.
The judgment of Kerwin,Taschereau, Kellock and Fauteux JJ. delivered by:—
KELLOCK J.:—In support of the appeal Mr. Varcoe relied heavily upon the decision of the House of Lords in Duncan v. Cammell Laird[4]: The present questions, however, relate exclusively to criminal proceedings, and it is stated by Viscount Simon L.C., in the above case at p. 591 that
The judgment of the House in the present case is limited to civil actions and the practice, as applied in criminal trials where an individual's life or liberty may be at stake, is not necessarily the same.
Even in criminal proceedings it has been held, for example, that the usual rule that the channel of information giving rise to a prosecution is not to be disclosed upon the ground of public interest, is not an absolute rule. In Hardy's case[5], Eyre C.J. said:
…there is a rule which has universally obtained on account of its importance to the public for the detection of crimes, that those persons who are the channel by means of which that detection is made, should not be unnecessarily disclosed: if it can be made to appear that really and truly it is necessary to the investigation of the truth of the case that the name of the person should be disclosed, I should be very unwilling to stop it. In referring to the above statement and to others of the same character, Viscount Simon said at the above page:
Indeed, Eyre, C. J., in the passage referred to appears only to be restricting needless cross-examination.
There is, accordingly, not only a public interest in maintaining the secrecy of documents where the public interest would otherwise be damnified, as, for example, where disclosure would be injurious to national defence or to good diplomatic relations, or where the practice of keeping a class of document is necessary for the proper functioning of the public service, but there is also a public interest which says that "an innocent man is not to be condemned when his innocence can be proved"; per Lord Esher M.R., in Marks v. Beyfus[6]. It cannot be said, however, that either the one or the other must invariably be dominant.
In considering the applicability of the rule as to secrecy of documents in the public interest, it is to be remembered that where it does apply, not even a copy of a document, no matter from what source it may be forthcoming, nor any oral evidence as to its contents are admissible.
In Chatterton v. Secretary of State for India[7], A. L. Smith, L.J., laid down the rule at p. 195 as follows:
The cases have gone the length of holding that, even if no objection were taken to the production of such a document by the person in whose custody it was, it would be the duty of the judge at the trial to intervene, and to refuse to allow it to be produced: and it has further been held that, if an attempt were made to get round that difficulty by giving secondary evidence of its contents, the judge ought also to prevent that from being done.
Viscount Simon, L.C., referred to the above with approval in the Cammell Laird case at p. 595, where he said:
The present opinion is concerned only with the production of documents, but it seems to me that the same principle must also apply to the exclusion of verbal evidence which, if given, would jeopardize the interests of the community.
In 1888, in Hennessy v. Wright[8], Wills J. had said:
I think the above cases abundantly show that no sound distinction can be drawn between the duty of the judge when objection is taken by the responsible officer of the Crown, or by the party, or when, no objection being taken by anyone, it becomes apparent to him that a rule of public policy prevents the disclosure of the documents or information sought. It follows that if, in any case, the nature of the information sought to be placed before the court is not of such a nature that by no person or by no means may evidence be given of it, there is no public interest attaching to its nondisclosure. Moreover, as observed by Lord Blanesburgh in Robinson's case[9]
…the privilege, the reason for it being what it is, can hardly be asserted in relation to documents the contents of which have already been published.
The documents which are involved in the questions presently before the court are all documents which have been "filed" pursuant to the provisions of one or other of the designated statutes, that is, they are all documents emanating from a taxpayer or a person required by the lgislation to furnish information. As pointed out by Viscount Simon in the Cammell Laird case at p. 592, the question as to what documents are non-producible on the ground of public interest, may arise with respect to the contents of a particular document or with respect to a class of document. The questions presently before the court relate exclusively to a class of document and not to the contents of any particular document within that class.
In considering the proper answers to be given to the questions asked, it is pertinent to consider whether in the legislation itself, Parliament has indicated whether or not any secrecy, from the standpoint of the state, is to attach to documents of this class. The situation will sufficiently appear if I refer only to the provisions of the Income Tax Act (1948) 11-12 Geo. VI, c. 52.
By s. 82(2), which deals with appeals by a taxpayer to the Income Tax Appeal Board from the decision of the Minister, it is not the Crown but the appellant who is given the right to require a hearing in camera. The present form of the section emphasizes the intention of Parliament in that the right formerly given by the previous s. 68 to the Crown to require the hearing to be in camera, no longer exists. It would seem difficult to contend in the light of this legislation that any state secrecy was intended by Parliament to surround the class of document here in question. S. 93, which deals with appeals to the Exchequer Court, is similar to s. 82(2). These provisions, in my view, indicate that any secrecy which is in contemplation of the statute is for the benefit of the taxpayer only.
Nor do the sections just referred to stand alone. By s. 120(1) it is made an offence to make, participate in or assent to the making of a false or deceptive statement in a return. Proceedings to enforce the penalty provided for such an offence necessarily involve the production of the offending return in evidence. In fact, by s. 124(8) provision is made for the admission of a sworn copy of any document made by or on behalf of a taxpayer as prima facie evidence of the nature and contents of the document. In Snell v. Haywood (No. 2)[10], it was held by the Appellate Division of the Supreme Court of Alberta that proceedings of this character by way of summary conviction must be in public.
I respectfully agree with the decision in Ship v. The King[11], where it was held by the Court of King's Bench, Appeal Side, that s. 121, which deals with the subject-matter of secrecy as to "any information obtained under this Act", or "any written statement furnished under this Act", and which prohibits communication by employees of Her Majesty to anyone except a person "legally entitled thereto", applies in the administrative field only. The statute itself has nothing to say as to the identity of the persons so entitled but leaves that to be determined by the general law. In my opinion, a court of competent jurisdiction issuing its subpoena would, in any event, be within the language of the exception and entitled to enforce the production of any returns or statements filed. It may be observed that in Ship's case the Crown did not, on that occasion, even object to the production of such documents.
The decision reached by a divided court in British Columbia in the case of Weber v. Pawlik[12], is one with which, with respect, I cannot agree. That was a partnership action in which the plaintiff alleged that the defendant, by concealing and mis-stating to him the firm's earnings, had deprived him of his proper share of the profits and eventually induced him to sell his interest at an undervalue. The plaintiff had left the management of the partnership business to the defendant, the latter making the income tax returns on its behalf, while furnishing the plaintiff with statements as to profits.
After the plaintiff had sold out his interest to the defendant, he was assessed for taxes in respect of periods during which the partnership was in existence, on profits substantially in excess of those which had been reported to him by the defendant. On application to the Income Tax authorities, the plantiff was given full particulars of the returns the defendant had filed, which were, of course, fully as much those of the plaintiff as of the defendant, but at the trial, on objection of the Minister, the returns were excluded. The objection appears to have involved the contention that the returns were not producible in the public interest because "confidential".
This decision, with respect, involves a misconception not only of the effect of the statute itself but also of the scope of the rule purported to be invoked, as, if applicable, no evidence of the contents of the returns could have been given either by production of a copy or by oral evidence. This could scarcely have been contended in such a case as the defendant would be obligated to make full disclosure of the income of the partnership.
Mr. Varcoe refused to take any such position in the case at bar but based the appeal upon the ground of an undertaking on the part of the Crown that tax returns will be kept confidential by the department. Neither in criminal nor in civil proceedings are documents which are merely "official" or "confidential" within the rule as to nondisclosure on the ground of public interest. In Asiatic Petroleum Company v. Anglo-Persian Oil Company Limited[13], Swinfen Eady, L.J., (with the subsequent approval of the Privy Council in Robinson v. South Australia[14], said p. 830 that the foundation of the rule
is that the information cannot be disclosed without injury to the public interests, and not that the documents are confidential or official, which alone is no reason for their non-production: Smith v. East India Co., 1 Ph. 60; Hennessy v. Wright, 21 Q.B.D., 509. In my view of the statute, there is no provision as to the confidential character of returns filed except that provided for by ss, 82(2), 93 and 121, with which I have already dealt.
It only remains, in this aspect of the matter, to refer to the decision in re Hargreaves[15]. That case arose under s. 115 of the Imperial Companies Act, 1862, which gives the court a discretion as to making an order for production of documents. The liquidator of the company there in question, in order to obtain evidence in support of a misfeasance summons against the directors, applied for an order that the surveyor of taxes should attend for examination and produce certain balance-sheets of the company which had been delivered to him for the purpose of assessment for income tax. The surveyor, who objected to produce on the ground that it would be contrary to the oath he had taken, was supported in his objection to production of the documents by the Board of Inland Revenue on the ground that to do so would be "prejudicial and injurious to the public interests and service".
Wright J., the judge of first instance, referred to the discretionary nature of the jurisdiction conferred by s. 115 and said that if he had sufficient evidence that in the opinion of the Board of Inland Revenue the Public service would suffer by the production of the documents, very strong ground ought to be shown before he would be justified in going behind the certificate of the Board and he refused to do so. His order was upheld on appeal, the court refusing to reverse the exercise of discretion below.
There is no such discretionary statutory provision applicable to the case at bar, but apart from that consideration, there are two matters to be noted. The first is the observation of Romer L.J., at p. 353:
The question now before us is not necessarily the same as that which may possibly arise upon the hearing of the misfeasance summons if the judge has then to consider the question of a subpoena for the production of these documents.
The other is that the provisions of the statute there in question, namely, the Income Tax Act of 1842, 5-6 Victoria, c. 35, are not the same as those of the Canadian statute. Sections 38 and 189, unlike s. 121 of the Canadian statute, contain no exception with respect to communication. Apart from the statutory provisions to which I have referred, our attention was not called to any others, federal or provincial, having any relevancy.
For these reasons therefore, I would answer question 1(a) and (b) in the affirmative, unless special facts or circumstances appearing on the minister's affidavit make it clear that there might be prejudice to the public interest in the disclosure, but only to the extent of the document or documents within the special facts or circumstances.
As to question 2, it was held by Wills J. in Hennessy v. Wright, ubi cit, at p. 523, that whether documents with respect to which the privilege on the ground of public policy exists are the property of the Crown rather than the property of the witness is immaterial. The question remains the same. This is indicated also by Viscount Simon in the Cammell Laird case at p. 591, where he said:
The question which we have to decide can only arise as a matter of law in England in cases where a subpoena is issued to a minister or department to produce a document (usually, but not necessarily, in a suit where the Crown is not a party), or where it intervenes in a suit between private individuals (as is the present case) to secure, on the ground of public interest, that documents in the hands of one of the litigants should not be produced. A similar situation might conceivably arise in litigation between the Crown and a subject where it was considered necessary to prevent the subject from producing a document in his possession on the ground that this would be injurious to public interests.
I would therefore answer that the documents are in the possession of the official to the extent that the court may order them produced in court pursuant to subpoena.
As to question 3, the minister has no right to object to the production of the documents.
Subject to the variations involved in these answers, the appeal should be dismissed.
ESTEY, J.:—The questions are restricted to a trial of an indictable offence, where a subpoena duces tecum has been served on the appropriate income tax official to produce before the court returns, reports, papers and documents filed pursuant to the provisions of the Income Tax Act, the Income War Tax Act or the Excess Profits Tax Act, 1940, and to give evidence relating thereto as to which the Minister of National Revenue has stated on oath that in his opinion such evidence and the production of such returns, reports, papers and documents would be prejudicial to the public interest (a) when such subpoena is served at the instance or on behalf of the Attorney-General of a province and (b) when such subpoena is served at the instance or on behalf of the accused.
That considerations of public safety and security require that the utmost secrecy be maintained with respect to certain documents and information in relation thereto in the possession of the Crown has long been recognized. The courts, in the administration of justice, have accepted, as part of their duty, the maintenance of that secrecy and have not required either be adduced in evidence. The basis of the rule is stated by Lord Blanesburgh in Robinson v. State of South Australia[16]:
As the protection is claimed on the broad principle of State policy and public convenience, the papers protected, as might have been expected, have usually been public official documents of a political or administrative character. Yet the rule is not limited to these documents. Its foundation is that the information cannot be disclosed without injury to the public interests and not that the documents are confidential or official, which alone is no reason for their non-production.
and by Viscount Simon in Duncan v. Cammell, Laird & Co.[17]:
The principle to be applied in every case is that documents otherwise relevant and liable to production must not be produced if the public interest requires that they should be withheld.
We are here concerned only with documents and information associated therewith filed pursuant to the requirements of the above-named statutes. Issues are constantly being tried before our courts relative to the liability of the taxpayer as well as prosecutions for the failure to perform duties imposed by these statutes. Accordingly, such documents and information in relation thereto have been repeatedly before the courts without any suggestion that the public safety or security has been at all imperilled; nor does there appear to be any reason in principle why these documents and information in relation thereto should, under ordinary circumstances, not be disclosed. It must follow that as a class these documents, in the ordinary course, do not involve questions of safety or security and as such their production would not be prevented upon the basis of public interest. There may, however, with respect to one or more of these documents and information in relation thereto, be special circumstances which the minister may consider such as to require his taking the objection in respect of these particular documents. It is, therefore, pertinent to consider, in that event, the procedure to be followed.
We were referred to a great many authorities under which the rule has long been recognized but in which there has been much difference of judicial opinion as to the manner in which the objection to produce such documents ought to be made and the respective functions of the minister and the judge. More recent authorities appear to have established that the objection must be made by the minister presiding over the department, commission, board or other body in whose custody the documents, the production of which is requested, are held. Before making the objection the minister should acquaint himself with the facts and, as a responsible minister of the Crown, decide whether the production of these documents, or evidence in relation thereto, would or would not be detrimental to the public interest. If he comes to the conclusion that their disclosure would be detrimental, it would appear that the more convenient procedure would be that he embody in an affidavit sufficient of the facts to indicate the nature of his objection and that he, as a responsible minister of the Crown, has concluded that their production, or information in relation thereto, in a court of law would be detrimental to the public interest.
The presiding judge, who, upon the affidavit, is satisfied that the production of these documents and information in relation thereto might be detrimental to the public interest, would give effect to the minister's objection.
The different opinions expressed by the authorities as to the right of a presiding judge to examine the documents appear to have been resolved by the observations of Viscount Simon in the Cammell, Laird case, supra. There the House of Lords expressly disapproved of the practice followed in Robinson v. State of South Australia, supra, where the Judicial Committee "remitted the case to the Supreme Court with the direction that it was one proper for the exercise of the court's power of inspecting documents to determine whether their production would be prejudicial to the public welfare". This view but emphasizes the fact that the documents and information in relation thereto to which the rule applies are such that neither should, by order of a court, be required to pass out of the possession of those officials of Her Majesty who are charged with their custody.
The Cammel, Laird was a civil case, but it would appear that the foregoing quotations and observations taken from or founded upon this case are relevant to the trial of an indictable offence.
Sections 81 of the Income War Tax Act and 121 of the Income Tax Act, 1948 would appear to have been placed in the statutes to assure that those charged with the administration of the foregoing statutes would treat as confidential the information contained in or filed in relation to these documents. The reason and basis therefor is quite different and has no bearing on or relation to the above-discussed rule founded upon the necessity of public safety and security.
In my opinion the questions submitted should be answered as phrased by the majority of the Court and set forth in the reasons of my brothers Rand and Kellock.
LOCKE J.:—I respectfully agree with the opinion of the learned Chief Justice of British Columbia and with the answers made by him to the questions referred to the Court of Appeal and would accordingly dismiss this appeal.
CARTWRIGHT J.:Question No. 1 may, at a first reading, appear to be ambiguous; but when it is considered in the light of the arguments addressed to us by both counsel it becomes clear that it is directed to a case in which the objection to the production of the documents called for in the subpoena duces tecum is based not upon any apprehended danger to the public interest from disclosure of the matter contained in the particular returns and other documents of which production is sought but upon the view entertained by the Minister that as a matter of public or departmental policy he ought to object to the production from the custody of the department of any income tax returns or correspondence relating thereto. The reason assigned in support of this view is that, while the returns are made under statutory compulsion, the taxpayers rely in making them upon an implied undertaking that the department will treat them as confidential communications and that it would be prejudicial to the public interest that this implied undertaking should be dishonoured.
In my view there is nothing in the acts referred to in the question which affirms the existence of any representation or undertaking on the part of the department that its officials will not produce the returns if called upon to do so by