Québec (Procureur Général) c. La Reine

Québec (Procureur Général) c. La Reine
Court (s) Database
Federal Court Decisions
Date
2001-02-12
Neutral citation
2001 FCT 51
File numbers
T-2834-96
Notes
Digest
Decision Content
Date: 20010212
Docket: T-2834-96
Neutral citation: 2001 FCT 51
BETWEEN:
ATTORNEY GENERAL OF QUEBEC
Plaintiff
- and -
HER MAJESTY THE QUEEN in right of Canada
Defendant
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is a motion by the defendant opposing the privileges of non-disclosure claimed by the plaintiff.
FACTS
[2] The plaintiff brought an action by statement of claim to determine the scope of the defendant's obligations pursuant to the Canada Assistance Plan, R.S.C. 1985, c. C-1.
[3] In accordance with Rule 223 of the Federal Court Rules, 1998, the parties exchanged their respective affidavits of documents and the documents listed therein, except for those in respect of which the parties claimed a privilege of non-disclosure.
[4] The plaintiff served on the defendant three affidavits of documents, namely the affidavit of Serge Audet, the affidavit of Claude Wallot and the affidavit of Jacques Lafontaine.
[5] The defendant challenged the privileges of non-disclosure claimed by the plaintiff on 71 documents, a list of which was submitted to the Court at the hearing.
[6] The privileges claimed by the plaintiff in respect of these 71 documents were claimed as solicitor-client privilege and negotiating strategy, as negotiating strategy and/or internal analysis and as documents intended for the provincial Cabinet.
[7] A [TRANSLATION] "notice of constitutional question" was served but it was mutually agreed that it was not necessary to raise this question at the hearing.
DEFENDANT'S ARGUMENTS
[8] The defendant maintained that pursuant to Rule 227 of the Federal Court Rules, 1998 this Court has the power on motion by the parties to the case to inspect the adequacy or accuracy of an affidavit of documents and if necessary to direct that an adequate or accurate affidavit be served and filed.
[9] That argument was not disputed by the plaintiff.
[10] The defendant maintained that the substantive rules relating to determination of the merits of the plaintiff's claims of privilege should be applied pursuant to art. 308 of the Quebec Code of Civil Procedure. That was also not disputed by the plaintiff.
[11] Accordingly, in the defendant's submission, the Court must balance the opposing interests of confidentiality in governmental matters on the one hand and the proper administration of justice on the other. To do this, the Court will consider in general, but not exclusively, six factors:
[TRANSLATION]
(a) the relevance of the information and documents in question and the feasibility of filing them so that the case can be adequately and fairly argued;
(b) the decision-making level in question;
(c) the exact nature of the public interest protection of which is sought by non-disclosure;
(d) the precise content of the information and documents in question;
(e) the time that has elapsed since the documents in question or the information sought originated;
(f) the importance of the issue.
[12] The defendant maintained that the burden of establishing the validity of a claim of privilege rests on the party relying on the privilege.
[13] The defendant alleged that this burden of proof required the filing of detailed affidavits to show:
[TRANSLATION]
(i) the precise nature of the public interest likely to be affected by the disclosure of information in respect of which a privilege is claimed;
(ii) how that public interest would be affected by the disclosure of the information in question; and
(iii) how the public interest should take priority over the interests of the proper administration of justice.
[14] The defendant maintained that simply having the opinion of a Minister and that of a public servant do not suffice to meet the burden of proof imposed on the party claiming privilege.
[15] The defendant alleged that the plaintiff had not discharged his burden of proof. According to the defendant, the four affidavits filed by the plaintiff in response to the instant motion essentially contain [TRANSLATION] "standard form" opinions of their respective authors that disclosure of the documents concerned in the motion:
[TRANSLATION]
(i) would confer an unfair advantage on the defendant in the event of a settlement of the case at bar; or
(ii) would probably adversely affect the conduct of federal-provincial relations;
(iii) would in some cases adversely affect the principle of confidentiality of documents intended for the Cabinet.
[16] The defendant maintained that the affidavits in reply cast no light on the facts or explanations which might support the opinions given therein.
[17] Accordingly, the four affidavits in reply submitted by the plaintiff should only have a very low evidentiary value in this Court.
[18] She accordingly argued that the plaintiff had not discharged his burden of showing that disclosure of the documents would give the defendant an unfair advantage in the event that the case at bar is settled or that disclosure would be likely to adversely affect the conduct of federal-provincial relations.
[19] The defendant also added that suggesting that a document falls within the class of Cabinet documents is not as such sufficient to justify denying its release for purposes of litigation.
[20] According to the defendant, the plaintiff, in order to justify its claim of privilege for the documents intended for the Quebec Cabinet, must show as a matter of fact:
(i) the precise nature of the public interest likely to be affected by the disclosure;
(ii) how that public interest would be affected by the disclosure; and
(iii) how the public interest should take priority over the interests of the proper administration of justice.
PLAINTIFF'S ARGUMENTS
[21] The plaintiff maintained that the following portions of the affidavits in reply of Jacques Lafontaine, Serge Audet, Claude Wallot and Pierre Roy set out the specific reasons supporting the claim of the privilege of non-disclosure in respect of the documents or part of documents mentioned by the defendant:
(i) [TRANSLATION] "disclosure would give the federal government an unfair advantage if the case at bar is settled. It would be likely to adversely affect the conduct of relations between the Government of Quebec and the federal government;
(ii) the documents should [TRANSLATION] "be covered by the privilege of confidentiality as documents intended for members of the Cabinet of the Government of Quebec";
(iii) the documents include [TRANSLATION] "legal opinions and discussions of legal opinions, which should benefit from the privilege of confidentiality as professional secrets between a solicitor and his client".
[22] The plaintiff maintained that the nature and the scope of the immunity of the Crown in right of Quebec, guaranteed by s. 308 of the Quebec Code of Civil Procedure, should be interpreted in light of the common law precedents on the point.
[23] The plaintiff cited the applicable tests set out in Carey v. Ontario, [1986] 2 S.C.R. 637, and indicated that the following tests should be considered:
[TRANSLATION]
(a) the decision-making level;
(b) the nature of the policy concerned and the particular contents of the documents;
(c) the time when disclosure is requested;
(d) the interests of the administration of justice in the production of the documents (the importance of the case, the need and desirability of producing the documents to ensure that the case can be adequately and fairly presented).
[24] On the decision-making level, the plaintiff alleged that several of the documents sought are intended for the highest decision-making level of the Government of Quebec, namely the Cabinet.
[25] Although it is true that a majority of the documents sought were prepared by professionals working on the administration of the federal-provincial agreements on health and social services, that should not have the effect of diminishing the importance of the documents.
[26] As to the nature of the policy concerned and the precise contents of the documents, the plaintiff maintained that the policy affected the conduct of relations. The great majority of the documents consisted of analyses and recommendations regarding the position the Government of Quebec should adopt on federal government decisions dealing with the sharing of health and social services costs.
[27] In the plaintiff's submission, the public interest favoured preserving the confidentiality of the documents concerned by the motion, which are likely to directly affect present and future federal-provincial relations.
[28] The plaintiff further argued that in most of the cost-sharing agreements between the federal government and the governments of the provinces, the provinces have a duty to justify their claims in order to obtain reimbursement from federal funds. As the federal government does not always give reasons for refusing to reimburse the expenditures claimed, access by the defendant to the documents sought would give the latter an unfair advantage.
[29] Further, disclosure of the documents sought could endanger the principle of the duality and autonomy of the Crown and destroy the political balance that should exist in a federal system.
[30] The plaintiff argued that the conduct of federal-provincial relations was a policy of the same type as diplomatic relations, which have consistently justified confidentiality of documents associated with that kind of policy.
[31] The plaintiff argued that the documents sought by the defendant related to the judicial proceeding between them in the principal case, although that does not make them relevant.
[32] The information contained in these documents thus preserves an actual and ongoing interest because the parties are still opposed in the principal proceeding.
[33] The fact that since March 31, 1996 the agreement is no longer in effect and that certain documents were prepared in 1972 does not in any way alter the fact that the information is important.
[34] In the plaintiff's submission, disclosure of the documents would give the defendant an unfair advantage both in prosecuting the case and in the event that the parties initiate discussions
to settle the issue.
[35] Further, the documents requested by the defendant are not relevant to the evidence that should be presented by the parties to the case. The documents do not provide evidence in themselves as they are opinions.
[36] In the plaintiff's submission, it is neither necessary nor useful for the defendant to use the documents to establish the validity of its refusal to reimburse the cost of the services provided.
[37] The plaintiff explained that the fact the documents are listed in its affidavits of documents does not constitute an admission of their relevance.
[38] The plaintiff argued that the question of relevance in public interest matters should be decided by different tests from those set out in the Federal Court Rules, 1998. That decision should actually be made at a later stage, thus allowing the opposing party to be aware of the actual existence of the documents.
[39] According to the plaintiff, the affidavits in reply are quite sufficient to allow the parties to argue the points raised. Further, the affidavits in reply could hardly be more detailed, as they would then be likely to impinge on the privilege of non-disclosure.
[40] The plaintiff maintained that the defendant's argument reflected excessive and somewhat archaic formalism when it required that each of the plaintiff's documents repeat the following formula:
[TRANSLATION]
(i) the precise nature of the public interest likely to be affected by the disclosure; (ii) how that public interest would be affected by the disclosure; and (iii) how the public interest should take priority over the interests of the proper administration of justice.
[41] The plaintiff further added that it is in the very nature of an affidavit in reply to contain an opinion on the privilege of the documents and that this objection by the defendant is not valid. However, the plaintiff admitted that this opinion is not binding on this Court.
DEFENDANT'S REPLY TO PLAINTIFF'S ARGUMENTS
[42] Contrary to what was argued by the plaintiff, the defendant maintained that as the documents did not fall in the class of Cabinet documents they should not be given a confidentiality rating equivalent to what the latter are usually given.
[43] The defendant also noted that the sole purpose of the rule that Cabinet documents are confidential is to safeguard [TRANSLATION] "the confidentiality of the government's decision-making process", a rule which clearly does not apply to government documents not intended for the Cabinet, and in the plaintiff's submission these make up a [TRANSLATION] "majority" of the documents concerned in the motion.
[44] In this connection the defendant noted that only nine of the 101 documents the plaintiff wishes to cover by privilege are Cabinet documents.
[45] The defendant maintained that in the current state of the law the rules applicable to privileged information dealing with the conduct of diplomatic relations cannot in any way be likened to those governing information on the conduct of federal-provincial relations.
[46] In the defendant's submission, it is well settled that information on the conduct of federal-provincial relations does not fall into the class of information (national security, defence, diplomatic relations and Cabinet secrets) which the courts generally treat with special sensitivity when an objection is made to their release.
[47] On the question of the "time of disclosure", the defendant noted that this factor was not developed by the courts in order to protect a party to litigation from the disclosure of information that might be prejudicial to its case.
[48] The factor exists in order to protect the confidentiality of information prepared in developing a governmental project or policy which is being worked out at the time their disclosure is sought, or the content of which is of such importance at that time to the public that disclosing it would be likely to interfere with the functioning of government.
[49] According to the defendant, this factor is of no assistance to the plaintiff since the case at bar turns essentially on the administration of a federal-provincial program which ceased in March 1996 and the first indications of which date back over 30 years.
[50] Further, the fact that disclosure of the documents concerned in the motion could be harmful to the plaintiff's case is not a defence under the Federal Court Rules, 1998 and so cannot serve as a basis for his claim of privilege.
[51] As to the relevance of the documents at issue, the defendant maintained that at this stage of the proceeding the Court is not required to consider the admissibility or evidentiary value of a document, which is in any case found to be relevant at the "discovery" stage by the party refusing disclosure.
[52] The defendant added that it is well settled that a government which has an interest in the outcome of litigation and objects to the disclosure of certain information in connection with that litigation is in a potential conflict of interest situation and this affects whether justice is seen to be done.
[53] Consequently, the courts should exercise great caution when a government which has entered into litigation claims privilege.
POINT AT ISSUE
[54] Should the documents in question be disclosed by the plaintiff?
ANALYSIS
Should the documents in question be disclosed by the plaintiff?
General rules regarding privilege
[55] Article 308 of the Quebec Code of Civil Procedure provides:
Similarly, government officials cannot be obliged to divulge what has been revealed to them in the exercise of their functions provided that the judge is of the opinion, for reasons set out in the affidavit of the Minister or deputy minister to whom the witness is answerable, that the disclosure would be contrary to public order.
De même, ne peut être contraint de divulguer ce qui lui a été révélé dans l'exercice de ses fonctions le fonctionnaire de l'État, si le juge est d'avis pour les raisons exposées dans la déclaration assermentée du ministre ou du sous-ministre de qui relève le témoin, que la divulgation serait contraire à l'ordre public.
[56] Article 308 of the Quebec Code of Civil Procedure codified the common law rule relating to privilege.
[57] In Carey v. Ontario, [1986] 2 S.C.R. 637, the Supreme Court of Canada explained the basis for the privilege for non-disclosure:
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.
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.
[58] Article 308 of the Quebec Code of Civil Procedure was also explained by the Supreme Court of Canada in Bisaillon v. Keable, [1983] 2 S.C.R. 60:
I do not dispute that art. 308 is a codification of the common law, as is s. 41 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, then in force, subject to the special features of the latter provision, which is limited to the production of documents and which resolves in a slightly different manner the question of whether the executive or judiciary is supreme: my brother Chouinard J., who wrote the unanimous reasons of the Court in Commission des droits de la personne v. Attorney General of Canada, [1982] 1 S.C.R. 215, recognized this at pp. 225 and 226. What is to be determined here, however, is the scope of this codification.
The way I see it, art. 308 was intended to solve two problems.
First, it recognized the supremacy of the judiciary over the executive as regards the priority that must be given to either Crown privilege or the administration of justice, in the event of a conflict between them. The Quebec legislator thus adopted the constitutional rule which this Court had indicated a preference for in R. v. Snider, [1954] S.C.R. 479, and Gagnon v. Commission des Valeurs Mobilières du Québec, and it rejected the solution adopted by the Quebec Court of Appeal in Minister of National Revenue v. Die-Plast Co. and by the House of Lords in Duncan v. Cammell, Laird and Co. before the latter changed its opinion in Conway v. Rimmer, [1968] A.C. 910.
Second, article 308 of the Code of Civil Procedure ratifies, for cases where it is appropriate, the procedure of an affidavit of the Minister which had often been used in practice in claiming Crown privilege, and which had already been outlined in the paragraph added to art. 332 in 1958.
[59] It is accordingly the function of the judiciary to determine what should be disclosed. In order to arrive at a conclusion in this regard, the Court may direct that the disputed documents be entered in court for inspection by the Court. In Carey, supra, the Supreme Court of Canada
indicated:
I would, therefore, order disclosure of the documents for the court's inspection. This will permit the court to make certain that no disclosure is made that unnecessarily interferes with confidential government communications. Given the deference owing to the executive branch of government, Cabinet documents ought not to be disclosed without a preliminary judicial inspection to balance the competing interests of government confidentiality and the proper administration of justice.
. . . . .
It seems to me that in a claim of public interest immunity which, like the present, seems doubtful, the court should feel free to examine the documents. There has, for a long period now, been a far more open and flexible attitude towards discovery in this country than in England. I think deciding the issue on a bare prima facie case of a public interest in non-disclosure, such as the Court of Appeal did here, is out of place in Canadian practice.
[60] Although this was said with reference to Ontario, the rules indicated above are applicable for purposes of art. 308. In Fabien v. Dimanche-Matin Ltée, [1979] S.C. 879, Chevalier J. indicated:
[TRANSLATION]
The rules relating to art. 308 C.C.P. may be summarized as follows:
(1) as the body responsible for public safety and well-being, the government has a duty to see that no facts are disclosed either by witnesses or by the filing of documents which in its opinion would affect those public interests;
. . . . .
(7) it is well settled that the courts have the necessary authority to conduct a preliminary ex parte inspection of documents and evidence which a litigant intends to submit or file in order to decide on the importance or priority that should be given to the public interest as against that of the litigant.
[61] In Carey, supra, the Supreme Court agreed with the remarks of Woodhouse P. in the New Zealand case Fletcher Timber Ltd. v. Attorney General, [1984] 1 N.Z.L.R. 290 (C.A.):
At page 295, he made the following statement with which I am in total agreement:
If the balance of public interest can be seen to support the claim of immunity without prior inspection by the Judge then the consequential decision against production will be made without further ado. In that regard the certificate itself should demonstrate with sufficient particularity what is the nature and the significance of the documents both in terms of any need to preserve their confidentiality on the one hand and for the actual litigation on the other. But where this is not the position, where the Judge has been left uncertain, it is difficult to understand how his own inspection could affect in any way the confidentiality which might deserve protection. And in that situation I think it would be wrong to put aside such a direct and practical means of resolving the difficulty. Indeed if it were to happen the primary responsibility of the Courts to provide informed and just answers would often depend on processes of sheer speculation, leaving the Judge himself grasping at air. That cannot be sensible nor it is necessary when by the simple act of judicial reconnaissance a reasonably confident decision could be given one way or another.
See also Richardson J., especially at pp. 301-02 and McMullin J., especially at pp. 307-08. These judges make it clear, in McMullin J.'s words at p. 308, that:
. . . once the documents are admitted to relate to the case, as they are here, they should be available for inspection unless there is some reason shown why in the interests of public policy that course should not be followed. And the onus of establishing that they should not be produced for inspection must lie on the party which seeks a departure from the general rule.
[62] The Court will consider several factors in weighing the opposing interests of the proper administration of justice and the public interest in confidential information on government activities not being disclosed. These factors were listed in Quebec (Procureur général) v. Dorion, [1993] R.D.J. 88 (C.A.):
[TRANSLATION]
First, I think it is now well established that it is not for the Crown to ultimately decide what may and must remain confidential, but for the Court hearing the case. The Supreme Court has rejected the argument that certain classes of document are secret as such. For example, it has acknowledged, as La Forest J. wrote in Carey, echoing in this Wilson J.'s opinion in Smallwood, "that Cabinet documents like other evidence must be disclosed unless such disclosure would interfere with the public interest". Accordingly, it is the public interest which must be the judge's
guide and this assessment will involve the inspection and consideration of several points, such as the decision-making level, the exact contents of the document, the time of its disclosure, its importance to the administration of justice and the reasons for non-disclosure. In this connection, La Forest J. made an important reservation when documents deal with areas such as national security or diplomatic relations: in that event, the judge may then agree to exclude them, even without inspecting them, since, he wrote, "on such issues, it is often unwise even for members of the judiciary to be aware of their contents, and the period in which they should remain secret may be very long". In any event, the judge must act with caution before ordering the filing of documents which should be kept confidential in the public interest.
In the case at bar, I do not doubt that the judge had the power and the right to inspect the document the filing of which was sought. The Court can only decide if the document, whether issued by the office of the Attorney General or by that of a Minister, is confidential, and if so, whether there is an overriding public interest that it be excluded from the evidence.
[63] In Carey, supra, the Supreme Court of Canada said on this point:
That case determines that Cabinet documents like other evidence must be disclosed unless such disclosure would interfere with the public interest. The fact that such documents concern the decision-making process at the highest level of government cannot, however, be ignored. Courts must proceed with caution in having them produced. But the level of the decision-making process concerned is only one of many variables to be taken into account. The nature of the policy concerned and the particular contents of the document are, I would have thought, even more important. So far as the protection of the decision-making process is concerned, too, the time when a document or information is to be revealed is an extremely important factor. Revelations of Cabinet discussion and planning at the developmental stage or other circumstances when there is keen public interest in the subject matter might seriously inhibit the proper functioning of Cabinet government, but this can scarcely be the case when low level policy that has long become of little public interest is involved.
To these considerations, and they are not all, one must, of course, add the importance of producing the documents in the interests of the administration of justice. On the latter question, such issues as the importance of the case and the need or desirability of producing the documents to ensure that it can be adequately and fairly presented are factors to be placed in the balance. In doing this, it is well to remember that only the particular facts relating to the case are revealed. This is not a serious departure from the general regime of secrecy that surrounds high level government decisions.
[64] Accordingly, whatever the class of documents the factors mentioned above will be considered in weighing the opposing interests.
[65] In the case at bar, the parties discussed the fact that several documents were intended for the highest decision-making level of the Quebec government, namely the Cabinet. However, most of the documents were prepared by public servants working for lower levels of the government.
[66] The defendant argues that since most of the documents were prepared by public servants working for lower levels of the government, there should not be a claim of privilege for the documents.
[67] The plaintiff argued that the fact that the documents were prepared by public servants working for lower levels of the government should not have the effect of reducing the importance of those documents, since their purpose was primarily to define the Quebec government's position in relation to the government.
[68] In this regard, I feel that the Supreme Court has dealt with the parties' concerns in Carey, supra. The Supreme Court of Canada indicated that the fact that documents may concern the decision-making process at the highest level of government cannot be ignored. Accordingly, the courts must proceed with caution when ordering that they be produced. However, the Supreme Court added that the level of the decision-making process is only one of the variables to be taken into account.
[69] As a result this test, though important, does not necessarily take priority over the other tests. Indeed, in Carey, supra, the Supreme Court indicated:
Rather, these cases indicate that the period of protection solely for preserving the confidentiality of the government decision-making process will be relatively short. While it may be true as the Court of Appeal states that the government policy concerns - the tourist and recreational industry in northwestern Ontario - may still be ongoing, I find it difficult to accept its conclusion that the advice given and decisions taken respecting the transaction involved in this case have not so lost their immediacy that a court must concern itself about them. We are talking about a transaction that took place over twelve years ago in connection with what by any measure can scarcely be regarded as high government policy.
Sworn statements by Minister or Deputy Minister mentioned in art. 308 of Quebec Code of Civil Procedure, affidavits of documents and affidavits in reply
[70] Article 308 of the Quebec Code of Civil Procedure provides that the Minister or Deputy Minister to whom the witness is answerable shall set out in an affidavit the reasons why the disclosure would be contrary to public order.
[71] The defendant argued that the Deputy Minister's statement in the case at bar is only a general opinion, essentially the same as those given in the other three affidavits in reply, without specific reference to the documents covered by the motion and based, first, on a partial review of the documents concerned and, second, on what was reported to him by Messrs. Audet, Lafontaine and Wallot, who allegedly [TRANSLATION] "explained the content of the documents sought by the motion".
[72] According to the defendant, this statement is lacking in real evidentiary value.
[73] In Gagnon v. Quebec (Commission des valeurs mobilières), [1965] S.C.R. 73, the Supreme Court of Canada said concerning notices given pursuant to art. 332 of the Quebec Code of Civil Procedure (now art. 308):
[TRANSLATION]
In my view - and this makes it unnecessary for me to consider any other point - the written certificate provided by the Attorney General, relying on the exception to the rule, does not entirely and fully meet the requirements of the foregoing questions. I concur with the opinion of Hyde J. and would say that the precise questions which the trial judge ordered the secretary of the Commission to answer did not by themselves indicate that public order was concerned, and like the learned judge I feel that, in his words, the Attorney General's certificate was not related to the facts on which the appellant wished to examine the witness, as it ought to be in order to meet the requirement for there to be privilege, but is a general formula applicable to all cases, regardless of the facts on which a witness is to be questioned.
[74] In Carey, supra, the Supreme Court said regarding affidavits pleading public interest immunity with reference to Ontario:
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.
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 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 . . .
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.
[75] The question for the Court here is whether the plaintiff's claims regarding the public interest justify granting a privilege of non-disclosure for the documents concerned.
[76] The Court must make its decision by applying various tests. However, the defendant's arguments on these tests are very relevant. For example, the defendant properly maintained that several documents date from some thirty years ago and that the plaintiff presented no evidence by affidavits of documents and affidavits in reply that it was in the public interest not to disclose
them.
[77] Nonetheless, the plaintiff's affidavits of documents indicate the name of the documents and date and the affidavits in reply give an explanation of the privilege claimed. However, this explanation is framed in general terms and it may be that those general terms do not suffice to identify the document in the affidavits of documents. Also, the explanation may not be sufficient in view of the aforementioned tests. For example, when the document is nearly thirty years old does it suffice for the explanation to be framed in general as follows:
[TRANSLATION]
Document No. 16 of my affidavit of documents should in part be covered by the privilege of confidentiality because its disclosure would give the federal government an unfair advantage in the event that the case at bar is settled. It would be likely to adversely affect the conduct of relations between the Government of Quebec and the federal government.
[78] Document No. 16 is that which appears in Serge Audet's affidavit and which is identified as follows:
[TRANSLATION]
16. 71-05-19 Memorandum explaining draft order - Negotiating strategy - Legal opinion
[79] It may in fact be difficult to decide, without consulting the documents, whether these documents should be covered by privilege.
[80] At the hearing counsel for the plaintiff filed the 71 documents in question with the Court
under confidential seal. The parties agreed that if the judge came to the conclusion that he had to inspect the documents in order to decide on their disclosure, he would make his decision in general terms both as to the relevancy of the documents and individually as to their disclosure.
[81] I dit not accept either the plaintiff's argument that the documents were related to the case although not relevant or the contention that the information contained in those documents had some interest for the case although they could not be disclosed.
[82] I accordingly conclude that prima facie relevance was established by the defendant for all the 71 documents in question.
[83] I therefore concluded that I should inspect each of the documents individually to decide whether the Court should grant the privilege of confidentiality for any of them.
[84] Before proceeding to the individual analysis of each document, I should mention that in some cases they constitute legal opinions, documents intended for Cabinet, exchanges between various public servants and documents containing appendices and that those documents extend over a period of more than 25 years.
[85] It was easier to decide when the documents were legal opinions or discussions of legal opinions, or were ministerial documents for the Cabinet.
[86] It was less easy to determine the need to preserve the confidentiality of certain documents which in some cases were a medley of financial documents, strategic opinions and continual updates of a federal-provincial interplay lasting over 30 years and involving para-governmental organizations which have since disappeared and the implementation of a federal-provincial agreement which has not been in force for five years now.
[87] I have therefore decided not to combine the questions but to give an individual decision on each document.
AFFIDAVIT OF SERGE AUDET
Document No. 17
[88] This is an internal memorandum from the Associate Deputy Minister to the Deputy Minister regarding the draft order. The memorandum is dated July 1, 1971. In my view, there is no need for this document to be covered by the confidentiality privilege claimed, as I am not persuaded that its disclosure could give the federal government an unfair advantage if the case at bar is settled. The disclosure of this document also does not appear to me to adversely affect the conduct of relations between the Government of Quebec and the federal government. I also could see in this document no legal opinion or discussion of a legal opinion indicating that the document should be covered by the confidentiality privilege as a professional secret between a solicitor and his client.
Document No. 23
[89] This is a memorandum on the position Quebec was to take in a forthcoming federal-provincial conference, and the document is dated November 27, 1973: I do not feel that this document should be covered by the confidentiality privilege because its disclosure would give the federal government an unfair advantage in the event that the case at bar is settled. The disclosure would not in my opinion adversely affect the conduct of relations between the Government of Quebec and the federal government and the document contains no discussion of a legal opinion to justify coverage by the confidentiality privilege as a professional secret between a solicitor and his client.
Document No. 24
[90] This is a memorandum from Paul Périard to the Minister of Social Affairs titled [TRANSLATION] "for reference" and dated March 12, 1974. Although this document originates at the Department of Justice, the signatory does not appear to be a lawyer and the document does not appear to be a legal opinion in whole or in part. I was not persuaded that this document should be covered by the confidentiality privilege because its disclosure would give the federal government an unfair advantage in the event that the case at bar is settled or that a disclosure would adversely affect the conduct of relations between the Government of Quebec and the federal government.
Document No. 35
[91] This is a letter from the Minister of