Babcock v. Canada (Attorney General)

Babcock v. Canada (Attorney General)
Collection
Supreme Court Judgments
Date
2002-07-11
Neutral citation
2002 SCC 57
Report
[2002] 3 SCR 3
Case number
28091
Judges
McLachlin, Beverley; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis
On appeal from
British Columbia
Subjects
Constitutional law
Evidence
Notes
SCC Case Information: 28091
Decision Content
Babcock v. Canada (Attorney General), [2002] 3 S.C.R. 3, 2002 SCC 57
The Attorney General of Canada on behalf of Her Majesty
the Queen in Right of Canada and in his capacity as Minister
of Justice, the Treasury Board of Canada and the Deputy
Minister of Justice Appellants
v.
Patricia Babcock, Linda Bell, Victoria Bryan, Lynn Burch, Karl
Burdak, George Carruthers, Gordon Carscadden, Margaret E.T. Clare,
Timothy W. Clarke, Moyra Dhaliwal, Mary Jane Dodge, Jonas Dubas,
S. David Frankel, Greg D. Franklin, Valerie Hartney, Bruce Hilchey,
John Kennedy, Digby Kier, Daniel L. Kiselbach, Ingeborg E. Lloyd,
Josephine Loncaric, John Loo, William Mah, Ian McKinnon, Robert
Moen, Nancy Oster, Michael Owens, Brent Paris, Darlene Patrick,
Paul Pelletier, David Prest, Brian Purdy, Christopher
Randall, Brian Sedgwick, Karen Shirley, Pamela Lindsay Smith,
Tim Stokes, Cory Stolte, Josée Tremblay, Karen A. Truscott, Max
Weder, Harry Wruck and Wendy Yoshida Respondents
and
The Attorney General of British Columbia, the Attorney General for
Alberta, the Information Commissioner of Canada
and the British Columbia Civil Liberties Association Interveners
and between
The Attorney General of Canada on behalf of Her Majesty
the Queen in Right of Canada and in his capacity as Minister
of Justice, the Treasury Board of Canada and the Deputy
Minister of Justice Appellants
v.
Rosemary Lutter and Emily Reid Respondents
and
The Attorney General of British Columbia, the Attorney General for
Alberta, the Information Commissioner of Canada
and the British Columbia Civil Liberties Association Interveners
Indexed as: Babcock v. Canada (Attorney General)
Neutral citation: 2002 SCC 57.
File No.: 28091.
2002: February 20; 2002: July 11.
Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for british columbia
Evidence — Disclosure of government information — Objection relating to a confidence of the Queen’s Privy Council — Government claiming in litigation with staff lawyers that certain documents were Cabinet confidences and consequently exempt from disclosure under s. 39 of Canada Evidence Act — Processes by which Cabinet confidentiality may be claimed and relinquished — Requirements for valid certification — Whether by releasing some documents Crown has waived its right to invoke s. 39 over other documents — Canada Evidence Act, R.S.C. 1985, c. C-5, s. 39 .
Constitutional law — Validity of legislation — Legislation exempting Cabinet confidences from disclosure — Whether legislation unconstitutional by reason of unwritten principles of Canadian Constitution — Whether Parliament’s decision to limit superior courts from compelling disclosure of Cabinet confidences impermissibly invades core jurisdiction of superior courts — Canada Evidence Act, R.S.C. 1985, c. C-5, s. 39 — Constitution Act, 1867 , preamble, s. 96 .
The respondents, who are staff lawyers with the federal Department of Justice in Vancouver, sued the federal Crown for breach of contract and breach of fiduciary duty when they failed to be paid the same salary as staff lawyers in Toronto. Lists of documents were exchanged, in which the government listed a number of documents as producible. In support of a motion to have the action transferred to the Federal Court, which was dismissed, the government filed the affidavit of an officer of the Treasury Board Secretariat which set out the rationale for the pay raise for Toronto lawyers. The government later changed its position on disclosure and delivered a certificate of the Clerk of the Privy Council pursuant to s. 39(1) of the Canada Evidence Act objecting to the disclosure of 51 documents and any examination thereon, on the ground that they contain “information constituting confidences of the Queen’s Privy Council for Canada”. The certificate claimed protection for 12 government documents previously listed as producible (some of which had already been disclosed), for five documents in the control or possession of the respondents, and for 34 government documents and information previously listed as not producible. The chambers judge dismissed the respondents’ application to compel production of the documents for which the government claimed protection. A majority of the Court of Appeal reversed this decision and ordered production on the ground that the government had waived its right to claim confidentiality by listing some of the documents as producible and by disclosing selective information in the affidavit.
Held: The appeal should be allowed in part. The documents certified but disclosed are no longer protected and may be used in the litigation.
Per McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.: Section 39 of the Canada Evidence Act is Canada’s response to the need to provide a mechanism for the responsible exercise of the power to claim Cabinet confidentiality in the context of judicial and quasi-judicial proceedings. Certification by the Clerk of the Privy Council or by a minister of the Crown is the trigger by which information becomes protected. Before certifying information, however, the Clerk or minister must answer two questions in the affirmative: first, is it a Cabinet confidence within the meaning of ss. 39(1) and 39(2) ; and second, is it information which the government should protect taking into account the competing interests in disclosure and retaining confidentiality? Once certified, information gains greater protection than at common law since the absolute language contained in s. 39 goes beyond the common law approach of balancing the public interest in protecting confidentiality and disclosure on judicial review. The requirements for valid certification are as follows: (1) it must be done by the Clerk or minister; (2) it must relate to information within s. 39(2) ; (3) it must be done in a bona fide exercise of delegated power; (4) it must be done to prevent disclosure of hitherto confidential information. If there has been disclosure, s. 39 no longer applies, since its only purpose is to prevent disclosure. The only timing limits are those found in s. 39(4) . The protection of s. 39 continues indefinitely unless: (1) the certificate is successfully challenged on the ground that it related to information that does not fall under s. 39 ; (2) the power of certification of the Clerk or minister has otherwise been improperly exercised; (3) s. 39(4) is engaged; or (4) the Clerk or minister chooses to decertify the information.
The concept of waiver in any ordinary sense of the term does not apply on the facts of this case, and this is consistent with the common law. By releasing some documents, the Crown has not waived its right to invoke s. 39 over other documents. Moreover, the language of s. 39(1) does not permit one to say that disclosure of some information removes s. 39 protection from other, non-disclosed information.
The wording of s. 39(1) leaves little scope for judicial review of a certification of Cabinet confidentiality. However, the principle that official actions must flow from statutory authority clearly granted and properly exercised still applies. The certification of the Clerk or minister under s. 39(1) may be challenged where the information for which immunity is claimed does not on its face fall within s. 39(1) , or where it can be shown that the Clerk or minister has improperly exercised the discretion conferred by s. 39(1) . It does not follow from the fact that s. 39 makes it difficult to attack a certification that the procedure is unlawful. All bodies expressly mentioned in s. 39 , not just superior courts, are competent to inquire into the validity of s. 39 claims for protection.
The s. 39 certification does not apply to the documents already disclosed, nor does it apply to the five documents that were in the respondents’ possession or control. Section 39 cannot be invoked regarding the affidavit, since the government disclosed selective information from it; therefore, the affidavit must be disclosed and the affiant may be cross-examined on its contents. As to related information, if it has been voluntarily disclosed in other documents, then s. 39 does not apply and the documents must be produced. By contrast, the government is under no obligation to disclose related information contained in documents that have been properly certified under s. 39 , but runs the risk that refusal may permit the court to draw an adverse inference. The remaining documents are protected by s. 39 of the Act. These conclusions are made without prejudice to future applications in this case.
Section 39 of the Act is constitutional. The unwritten constitutional principles do not limit government actions in this case. It is well within the power of the legislature to enact laws, as long as it does not fundamentally alter or interfere with the relationship between the courts and the other branches of government. Moreover, Parliament’s decision to limit superior courts from compelling disclosure of Cabinet confidences does not impermissibly invade the core jurisdiction of the superior courts. Section 39 does not entirely exclude judicial review of the determination by the Clerk that the information is a Cabinet confidence. It does not, in and of itself, impede a court’s power to remedy abuses of process.
Per L’Heureux-Dubé J.: There is substantial agreement with the majority’s reasons. Before certifying information as confidential under s. 39(1) of the Canada Evidence Act , however, the Clerk or minister need not take into account the “competing interests” in disclosure. The Clerk or minister must only answer two questions before certifying, namely, (1) whether the document is a Cabinet confidence; and (2) whether it is information that the government wishes to protect.
Cases Cited
By McLachlin C.J.
Referred to: Singh v. Canada (Attorney General), [2000] 3 F.C. 185; Carey v. Ontario, [1986] 2 S.C.R. 637; Roncarelli v. Duplessis, [1959] S.C.R. 121; Duncan v. Cammell, Laird & Co., [1942] A.C. 624; Leeds v. Alberta (Minister of the Environment) (1990), 69 D.L.R. (4th) 681; Sankey v. Whitlam (1978), 142 C.L.R. 1; Makanjuola v. Commissioner of Police of the Metropolis, [1992] 3 All E.R. 617; RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; Commission des droits de la personne v. Attorney General of Canada, [1982] 1 S.C.R. 215; Reference re Amendments to the Residential Tenancies Act (N.S.), [1996] 1 S.C.R. 186; MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725; R. v. Eldorado Nuclear Ltd., [1983] 2 S.C.R. 551.
Statutes and Regulations Cited
Canada Evidence Act, R.S.C. 1985, c. C-5, ss. 37 , 38 , 39 .
Constitution Act, 1867 , preamble, s. 96 .
Ombudsman Act, R.S.B.C. 1996, c. 340.
Authors Cited
Great Britain. Report of the Committee of Privy Counsellors on Ministerial Memoirs. London: HMSO, January 1976.
APPEAL from a judgment of the British Columbia Court of Appeal (2000), 188 D.L.R. (4th) 678, 142 B.C.A.C. 161, 76 B.C.L.R. (3d) 35, [2000] 6 W.W.R. 577, [2000] B.C.J. No. 1127 (QL), 2000 BCCA 348, allowing the respondents’ appeal from a judgment of the British Columbia Supreme Court (1999), 176 D.L.R. (4th) 417, 70 B.C.L.R. (3d) 128, [1999] B.C.J. No. 1777 (QL). Appeal allowed in part.
David Sgayias, Q.C., and Christopher Rupar, for the appellants.
Richard R. Sugden, Q.C., and Craig P. Dennis, for the respondents.
George H. Copley, Q.C., for the intervener the Attorney General of British Columbia.
James C. Robb, Q.C., for the intervener the Attorney General for Alberta.
Daniel Brunet, for the intervener the Information Commissioner of Canada.
Joseph J. Arvay, Q.C., and Christopher Jones, for the intervener the British Columbia Civil Liberties Association.
The judgment of McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ. was delivered by
1 The Chief Justice — This case raises the issue of when, if ever, Cabinet confidences must be disclosed in litigation between the government and private citizens.
2 On June 6, 1990, the Treasury Board of Canada set the pay of Department of Justice lawyers working in the Toronto Regional Office at a higher rate than that of lawyers working elsewhere. Vancouver staff lawyers brought an action in the Supreme Court of British Columbia, contending that by failing to pay them the same salaries as Toronto lawyers the government breached their contracts of employment and the fiduciary duty toward them.
3 The action proceeded, and the parties exchanged lists of relevant documents in December 1996, as required by the B.C. Supreme Court Rules. A supplemental list of documents was delivered by the government in June 1997. The government listed a number of documents as producible.
4 The government then brought a motion to have the action transferred from the Supreme Court of British Columbia to the Federal Court. In support of its application, it filed an affidavit by Joan McCoy, an officer of the Treasury Board Secretariat. The affidavit stated that the rationale for the Order-in-Council authorizing the pay raise for Toronto lawyers was that lawyers in Toronto generally commanded higher salaries than lawyers in other parts of the country. The affidavit also disclosed the date of the Treasury Board’s decision.
5 The government’s motion to transfer the action was denied and the action continued in the Supreme Court of British Columbia. The government, nearly two years after it delivered the first list of documents, changed its position on disclosure of documents. It delivered a certificate of the Clerk of the Privy Council pursuant to s. 39(1) of the Canada Evidence Act, R.S.C. 1985, c. C-5 , objecting to the disclosure of 51 documents and any examination thereon, on the ground that they contain “information constituting confidences of the Queen’s Privy Council for Canada”. The certificate claimed protection for 12 government documents previously listed as producible (some of which had already been disclosed), for five documents in the control or possession of the plaintiffs, and for 34 government documents and information previously listed as not producible.
6 The plaintiffs (respondents) brought an application to compel production of the documents for which the government claimed protection. The chambers judge, Edwards J., ruled against them, holding that s. 39 of the Canada Evidence Act was constitutional and clear. If the Clerk of the Privy Council filed a certificate, that was the end of the matter, and the courts had no power to set the certificate aside. A majority of the Court of Appeal reversed this decision and ordered production of the documents on the ground that the government had waived its right to claim confidentiality by listing some of the documents as producible and by disclosing selective information in the McCoy affidavit. The government appeals this decision to this Court.
I. Legislation
7 Canada Evidence Act, R.S.C. 1985, c. C-5
39. (1) Where a minister of the Crown or the Clerk of the Privy Council objects to the disclosure of information before a court, person or body with jurisdiction to compel the production of information by certifying in writing that the information constitutes a confidence of the Queen’s Privy Council for Canada, disclosure of the information shall be refused without examination or hearing of the information by the court, person or body.
(2) For the purpose of subsection (1), “a confidence of the Queen’s Privy Council for Canada” includes, without restricting the generality thereof, information contained in
(a) a memorandum the purpose of which is to present proposals or recommendations to Council;
(b) a discussion paper the purpose of which is to present background explanations, analyses of problems or policy options to Council for consideration by Council in making decisions;
(c) an agendum of Council or a record recording deliberations or decisions of Council;
(d) a record used for or reflecting communications or discussions between ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy;
(e) a record the purpose of which is to brief Ministers of the Crown in relation to matters that are brought before, or are proposed to be brought before, Council or that are the subject of communications or discussions referred to in paragraph (d); and
(f) draft legislation.
(3) For the purposes of subsection (2), “Council” means the Queen’s Privy Council for Canada, committees of the Queen’s Privy Council for Canada, Cabinet and committees of Cabinet.
(4) Subsection (1) does not apply in respect of
(a) a confidence of the Queen’s Privy Council for Canada that has been in existence for more than twenty years; or
(b) a discussion paper described in paragraph (2)(b)
(i) if the decisions to which the discussion paper relates have been made public, or
(ii) where the decisions have not been made public, if four years have passed since the decisions were made.
II. Decisions
A. British Columbia Supreme Court (1999), 176 D.L.R. (4th) 417
8 The chambers judge dismissed the plaintiffs’ application for production and upheld the government’s claim to confidentiality in its entirety. He held that certification by the Clerk of the Privy Council or a minister of the Crown under s. 39 creates absolute protection, which reflects the importance of protecting the confidentiality of the Cabinet process. Since the remuneration of employees was exclusively within competence of the federal government, the Clerk’s decision to certify the documents and information as confidential could not be challenged. Neither the listing of documents as producible nor the disclosure of information in the McCoy affidavit constituted waiver. Edwards J. found that barring very exceptional circumstances, prior disclosure does not waive s. 39 . Finally, Edwards J. rejected the argument that confidentiality unconstitutionally trenched on the core jurisdiction of the superior courts protected by s. 96 of the Constitution Act, 1867 , given the long recognition of cabinet privilege as a legitimate exercise of Parliament’s power.
B. British Columbia Court of Appeal (2000), 188 D.L.R. (4th) 678, 2000 BCCA 348
9 The majority of the Court of Appeal held that Edwards J. erred in rejecting the claim that the government had waived protection to the documents and information. The Crown, as a public representative, must be able to waive privilege; otherwise, any litigant opposing the Crown would be in the untenable position of being unable to rely on the government’s production of documents, regardless of how essential the documents were to their case or how late the Crown’s application for immunity. While there might be a need for “extreme curtailment” of a litigant’s rights to full discovery for documents concerned with sensitive matters like state defence, internal security or diplomatic relations, the government must be permitted to waive protection in appropriate cases.
10 Applying this principle, the majority held that the government waived immunity for the 17 documents previously identified as producible. Protection was also waived for the information in the McCoy affidavit which outlined the government’s rationale for the salary differential at the heart of the litigation. Any claim for privilege thereafter would be selective, requiring that claims for confidentiality on all related information be treated as waived. With respect to the remaining 34 documents, the majority held that s. 39 confers class immunity rather than selective immunity; it followed that waiver operates on a class basis. Thus, waiver of immunity for 17 of the documents covered by the s. 39 certificate waived the immunity for all of the relevant documents within the class. In view of this conclusion, it was not necessary to consider whether s. 39 was constitutional.
11 Southin J.A. dissented. In her view, it is “not appropriate for the judiciary to intermeddle in the business of the Cabinet and its committees and it is not at all clear to me . . . that the judiciary must regain its control over this whole field of the law, a proposition which to me has a distasteful ring of judicial arrogance” (para. 52). This said, s. 39 is limited to papers that are actually put before the Cabinet or a Cabinet committee and the Clerk must exercise her powers properly. She must properly describe the documents, bringing them within the ambit of the section, and if it can be shown, either from internal or external evidence, that the Clerk has exceeded the power conferred upon her, the court can require disclosure of all documents not within the section.
12 Southin J.A. held that only an act of the Clerk or of a minister of the Crown can effect waiver. Otherwise, junior functionaries having no conception of the importance of Cabinet confidentiality would be able to waive it, to the detriment of the national interest.
13 Newbury J.A concurred with MacKenzie J.A. with respect to the waiver of privilege in this case. However, she went on to state that had waiver not occurred, she would have agreed with Southin J.A.’s findings concerning the requirements of particularity on the part of the Clerk in claiming the privilege.
III. Issues
14 1. What is the nature of Cabinet confidentiality and the processes by which it may be claimed and relinquished?
2. Is s. 39 of the Canada Evidence Act constitutional?
IV. Discussion
A. The Principles
15 Cabinet confidentiality is essential to good government. The right to pursue justice in the courts is also of primary importance in our society, as is the rule of law, accountability of the executive, and the principle that official actions must flow from statutory authority clearly granted and properly exercised. Yet sometimes these fundamental principles conflict. How are such conflicts to be resolved? That is the question posed by this appeal.
16 The answer to the question lies in our understanding of Cabinet confidentiality. What is its purpose? What does it apply to? What is the process for claiming it? Once claimed, can it be relinquished or lost, and if so, how? These questions find their answers in an understanding of Cabinet confidentiality and the ambit and effect of s. 39 of the Canada Evidence Act that protects it.
(1) The Function of Section 39 of the Canada Evidence Act
17 Sections 37 , 38 and 39 of the Canada Evidence Act deal with objections to the disclosure of protected information held by the federal government. Section 37 relates to all claims for Crown privilege, except Cabinet confidences, or confidences of the Queen’s Privy Council; s. 38 pertains to objections related to international relations or national defence; and s. 39 deals with Cabinet confidences. Under ss. 37 and 38, a judge balances the competing public interests in protection and disclosure of information. Under s. 39, by contrast, the Clerk or minister balances the competing interests. If the Clerk or minister validly certifies information as confidential, a judge or tribunal must refuse any application for disclosure, without examining the information.
18 The British democratic tradition which informs the Canadian tradition has long affirmed the confidentiality of what is said in the Cabinet room, and documents and papers prepared for Cabinet discussions. The reasons are obvious. Those charged with the heavy responsibility of making government decisions must be free to discuss all aspects of the problems that come before them and to express all manner of views, without fear that what they read, say or act on will later be subject to public scrutiny: see Singh v. Canada (Attorney General), [2000] 3 F.C. 185 (C.A.), at paras. 21-22. If Cabinet members’ statements were subject to disclosure, Cabinet members might censor their words, consciously or unconsciously. They might shy away from stating unpopular positions, or from making comments that might be considered politically incorrect. The rationale for recognizing and protecting Cabinet confidences is well summarized by the views of Lord Salisbury in the Report of the Committee of Privy Counsellors on Ministerial Memoirs (January 1976), at p. 13:
A Cabinet discussion was not the occasion for the deliverance of considered judgements but an opportunity for the pursuit of practical conclusions. It could only be made completely effective for this purpose if the flow of suggestions which accompanied it attained the freedom and fulness which belong to private conversations — members must feel themselves untrammelled by any consideration of consistency with the past or self-justification in the future. . . . The first rule of Cabinet conduct, he used to declare, was that no member should ever “Hansardise” another, — ever compare his present contribution to the common fund of counsel with a previously expressed opinion. . . .
The process of democratic governance works best when Cabinet members charged with government policy and decision-making are free to express themselves around the Cabinet table unreservedly. In addition to ensuring candour in Cabinet discussions, this Court in Carey v. Ontario, [1986] 2 S.C.R. 637, at p. 659, recognized another important reason for protecting Cabinet documents, namely to avoid “creat[ing] or fan[ning] ill-informed or captious public or political criticism”. Thus, ministers undertake by oath as Privy Councillors to maintain the secrecy of Cabinet deliberations and the House of Commons and the courts respect the confidentiality of Cabinet decision-making.
19 At one time, the common law viewed Cabinet confidentiality as absolute. However, over time the common law has come to recognize that the public interest in Cabinet confidences must be balanced against the public interest in disclosure, to which it might sometimes be required to yield: see Carey, supra. Courts began to weigh the need to protect confidentiality in government against the public interest in disclosure, for example, preserving the integrity of the judicial system. It follows that there must be some way of determining that the information for which confidentiality is claimed truly relates to Cabinet deliberations and that it is properly withheld. At common law, the courts did this, applying a test that balanced the public interest in maintaining confidentiality against the public interest in disclosure: see Carey, supra.
20 In addition, many jurisdictions have enacted laws that modify the common law and provide a statutory process for determining what documents are protected and how claims to confidentiality may be challenged: see, for example, the Ombudsman Act, R.S.B.C. 1996, c. 340. The exercise of this statutory power is subject to the well-established rule that official actions must flow from statutory authority clearly granted and properly exercised: Roncarelli v. Duplessis, [1959] S.C.R. 121. The courts have the power and the responsibility, when called upon, to determine whether the certifying official has exercised his or her statutory power in accordance with the law.
21 Section 39 of the Canada Evidence Act is Canada’s response to the need to provide a mechanism for the responsible exercise of the power to claim Cabinet confidentiality in the context of judicial and quasi-judicial proceedings. It sets up a process for bringing information within the protection of the Act. Certification by the Clerk of the Privy Council or by a minister of the Crown, is the trigger by which information becomes protected. The Clerk must certify that the “information constitutes a confidence of the Queen’s Privy Council for Canada”. For more particularity, s. 39(2) sets out categories of information that falls within its scope.
22 Section 39(1) permits the Clerk to certify information as confidential. It does not restrain voluntary disclosure of confidential information. This is made clear from the French enactment of s. 39(1) which states that s. 39 protection arises only “dans les cas où” (in the cases where) the Clerk or minister opposes disclosure of information. Therefore, the Clerk must answer two questions before certifying information: first, is it a Cabinet confidence within the meaning of ss. 39(1) and 39(2) ; and second, is it information which the government should protect taking into account the competing interests in disclosure and retaining confidentiality? If, and only if, the Clerk or minister answers these two questions positively and certifies the information, do the protections of s. 39(1) come into play. More particularly, the provision that “disclosure of the information shall be refused without examination or hearing of the information by the court, person or body” is only triggered when there is a valid certification.
23 If the Clerk or minister chooses to certify a confidence, it gains the protection of s. 39. Once certified, information gains greater protection than at common law. If s. 39 is engaged, the “court, person or body with jurisdiction” hearing the matter must refuse disclosure; “disclosure of the information shall be refused”. Moreover, this must be done “without examination or hearing of the information by the court, person or body”. This absolute language goes beyond the common law approach of balancing the public interest in protecting confidentiality and disclosure on judicial review. Once information has been validly certified, the common law no longer applies to that information.
24 This raises the issue of what constitutes valid certification. Two requirements are plain on the face of the legislation. First, it must be done by the Clerk of the Privy Council or a minister of the Crown. Second, the information must fall within the categories described in s. 39(2).
25 A third requirement arises from the general principle applicable to all government acts, namely, that the power exercised must flow from the statute and must be issued for the bona fide purpose of protecting Cabinet confidences in the broader public interest. The function of the Clerk under the Act is to protect Cabinet confidences, and this alone. It is not to thwart public inquiry nor is it to gain tactical advantage in litigation. If it can be shown from the evidence or the circumstances that the power of certification was exercised for purposes outside those contemplated by s. 39, the certification may be set aside as an unauthorized exercise of executive power: see Roncarelli, supra.
26 A fourth requirement for valid certification flows from the fact that s. 39 applies to disclosure of the documents. Where a document has already been disclosed, s. 39 no longer applies. There is no longer a need to seek disclosure since disclosure has already occurred. Where s. 39 does not apply, there may be other bases upon which the government may seek protection against further disclosure at common law: Duncan v. Cammell, Laird & Co., [1942] A.C. 624 (H.L.), at p. 630; Leeds v. Alberta (Minister of the Environment) (1990), 69 D.L.R. (4th) 681 (Alta. Q.B.); Sankey v. Whitlam (1978), 142 C.L.R. 1 (Austl. H.C.), at p. 45. However, that issue does not arise on this appeal. Similarly, the issue of inadvertent disclosure does not arise here because the Crown deliberately disclosed certain documents during the course of litigation.
27 On the basis of these principles, I conclude that certification is generally valid if: (1) it is done by the Clerk or minister; (2) it relates to information within s. 39(2); (3) it is done in a bona fide exercise of delegated power; (4) it is done to prevent disclosure of hitherto confidential information.
28 It may be useful to comment on the formal aspects of certification. As noted, the Clerk must determine two things: (1) that the information is a Cabinet confidence within s. 39; and (2) that it is desirable that confidentiality be retained taking into account the competing interests in disclosure and retaining confidentiality. What formal certification requirements flow from this? The second, discretionary element may be taken as satisfied by the act of certification. However, the first element of the Clerk’s decision requires that her certificate bring the information within the ambit of the Act. This means that the Clerk or minister must provide a description of the information sufficient to establish on its face that the information is a Cabinet confidence and that it falls within the categories of s. 39(2) or an analogous category; the possibility of analogous categories flows from the general language of the introductory portion of s. 39(2). This follows from the principle that the Clerk or minister must exercise her statutory power properly in accordance with the statute. The kind of description required for claims of solicitor-client privilege under the civil rules of court will generally suffice. The date, title, author and recipient of the document containing the information should normally be disclosed. If confidentiality concerns prevent disclosure of any of these preliminary indicia of identification, then the onus falls on the government to establish this, should a challenge ensue. On the other hand, if the documents containing the information are properly identified, a person seeking production and the court must accept the Clerk’s determination. The only argument that can be made is that, on the description, they do not fall within s. 39, or that the Clerk has otherwise exceeded the powers conferred upon her.
29 As to the timing of certification, the only limits are those found in s. 39(4). Subject to these outer limits, it seems that information that falls within s. 39(2) may be certified long after the date the confidence existed or arose in Cabinet. At the same time, as discussed, if there has been disclosure, s. 39 no longer applies, since its only purpose is to prevent disclosure.
30 It may be that the Clerk or minister can withdraw a certification of Cabinet confidence under s. 39 of the Canada Evidence Act , on the theory that the power to certify must also include a power to decertify, as suggested by Southin J.A.; and that where a certification is made in error, for example, the Clerk or minister should be able to correct the matter. However, that issue does not arise here.
(2) Waiver
31 On the facts of this case, the concept of waiver in any ordinary sense of the term finds no place. As discussed, the Clerk or minister is not compelled to certify Cabinet confidences and invoke the protection of s. 39(1) . However, if the Clerk or minister chooses to do so, the protection of s. 39 automatically follows. That protection continues indefinitely, unless: (i) the certificate is successfully challenged on the ground that it related to information that does not fall under s. 39 ; (ii) the power of certification of the Clerk or minister has otherwise been improperly exercised; (iii) s. 39(4) is engaged; or (iv) the Clerk or minister chooses to decertify the information. The clear language of s. 39(1) permits no other conclusion.
32 This is consistent with the fact that waiver does not apply at common law. A claim for confidentiality at common law cannot be contested on the ground that the government has waived its right to claim confidentiality. As Bingham L.J. observed in Makanjuola v. Commissioner of Police of the Metropolis, [1992] 3 All E.R. 617 (C.A.), at p. 623, “[p]ublic interest immunity is not a trump card vouchsafed to certain privileged players to play when and as they wish”. Consequently, “public interest immunity cannot in any ordinary sense be waived” (p. 623). Issues of production pursuant to s. 39 of the Canada Evidence Act fall to be resolved by the Clerk or minister responsible for balancing the public interests. If a certificate is not properly filed, and documents are released, the Crown is precluded from claiming s. 39 protection. However, by releasing some documents, the Crown has not waived its right to invoke s. 39 over other documents.
33 It is argued that unless the broad power of waiver envisioned by the majority of the Court of Appeal is recognized, litigants opposing the Crown will be placed in the untenable position of being unable to rely on the Crown’s production of documents, no matter how essential such documents are to their case or how late the Crown makes its claim to immunity. This concern is alleviated by the fact that s. 39(1) cannot be applied retroactively to documents that have already been produced in litigation; it applies only to compel disclosure.
34 The conclusion that waiver does not apply here makes it unnecessary to consider the issue of class waiver — whether disclosure of one document removes protection from all documents in the same class. However, the related issue of class disclosure of information must be addressed.
35 Section 39 protects “information” from disclosure. It may be that some information on a particular matter has been disclosed, while other information on the matter has not been disclosed. The language of s. 39(1) does not permit one to say that disclosure of some information removes s. 39 protection from other, non-disclosed information. If the related information has been disclosed in other documents, then s. 39 does not apply and the documents containing the information must be produced. If the related information is contained in documents that have been properly certified under s. 39 , the government is under no obligation to disclose the related information.
36 This raises the concern that selective disclosure of documents or information may be used unfairly as a litigation tactic. The fear is that the Crown could choose to disclose only those documents which are favourable to its position and certify those documents which are detrimental. Selective disclosure designed to prevent getting at the truth would not be a proper exercise of the Clerk’s or minister’s s. 39 powers: Roncarelli, supra. Moreover, the ordinary rules of litigation offer protection from abuse. First, government witnesses may be cross-examined on the information produced. Second, the refusal to disclose information may permit a court to draw an adverse inference. For example, in RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, the Attorney General’s refusal to disclose information relating to an advertising ban on tobacco, led to the inference that the results of the studies must undercut the government’s claim that a less invasive ban would not have produced an equally salutary result (para. 166, per McLachlin J.).
(3) Judicial Review
37 Judicial review under s. 39 arises when “a court, person or body with jurisdiction to compel the production of information” is presented with an application to order disclosure of information which the Clerk or a minister has certified as a Cabinet confidence under s. 39(1) . Section 39 is directed to whether a document is protected from disclosure.
38 Section 39(1) leaves little scope for judicial review of a certification of Cabinet confidentiality. It states flatly that “disclosure of the information shall be refused” (emphasis added). Furthermore, it must be refused “without examination or hearing of the information by the court, person or body”.
39 As discussed, even language this draconian cannot oust the principle that official actions must flow from statutory authority clearly granted and properly exercised: Roncarelli, supra. It follows from this principle that the certifica