A-118-74
Donald R. McCleery, former Staff Sergeant of the
Royal Canadian Mounted Police (Applicant)
v.
The Queen, the Solicitor General of Canada, the
Honourable Warren Allmand, and the Commis
sioner of the Royal Canadian Mounted Police
(Respondents)
and
D. S. Thorson, Deputy Attorney General of
Canada (Mis -en-cause)
Court of Appeal, Thurlow, Pratte and Ryan
JJ.—Ottawa, September 16 and 23, 1974.
Dismissal of applicant from Royal Canadian Mounted
Police Force—Application to review decision of Commis-
sioner—Manner of using documents deposited in Court by
Commissioner—Motion for directions—Federal Court Act,
ss. 28, 51—Rules 201, 1402.
The applicant was one of two parties making a section 28
application for review of the decision of the Commissioner,
Royal Canadian Mounted Police, ordering their dismissal
from the force. In the course of the application, two returns
of documents were made to the Court, the first, on behalf of
the respondent Solicitor General, claimed privilege, under
section 41(2) of the Federal Court Act, for documents not
sent to the Court, and, under section 41(1) for documents
forwarded under seal to the Court. The second was a
deposit of documents, pursuant to Rule 1402, by the Com
missioner, with a covering letter describing the material as
"-`Top Secret" and recommending that it be treated accord
ingly by Court officials. With reference to the second return,
application was made by the respondents for directions as to
the manner in which the deposited documents should be
used, having regard to the fact that they included comments
on persons not parties to the action. Counsel for the appli
cant supported this position and asked that the Court order
some restriction on access by the public to the documents.
Held, dismissing the application, that the Court would not,
of its own motion, hold privileged the police reports con
tained in the material, especially since the responsible Minis
ter had previously claimed, under section 41 of the Federal
Court Act, privilege for some documents, and had not
claimed it for others. Apart from privilege, interests of three
types might be involved in the disclosure of documents. The
first was the interest of the parties to the proceeding. The
sending of documents to this Court by the public authority
concerned, without a claim for privilege for them, was a
sufficient indication that there was no public interest requir
ing that public access to them should be restricted. On the
other hand, a party launching a section 28 application to
review a decision puts in motion a procedure requiring that
the Court have available the material on which the decision
was reached. Ordinarily he cannot expect that documents
which his demand has caused to be sent to this Court should
not be subject to the right of public access, under Rule
201(3), except where public disclosure might prevent justice
being done. There was nothing in the documents here the
disclosure of which would prevent the Court from deciding
the case according to law. The second interest involved, of
persons not parties to the proceedings but referred to in the
documents, or having some interest of their own in them,
and the third interest, of the member of the public seeking
access to the documents under Rule 201(3), were not repre
sented before the Court, so the Court refrained from pro
nouncement on them.
Rogers v. Secretary of State for the Home Department
[1972] 2 All E.R. 1057; Scott v. Scott [1913] A.C. 417;
Gazette Printing Company v. Shallow (1909) 41 S.C.R.
339 and Ex parte Associated Newspapers Ltd. [1959] 3
All E.R. 878, considered.
APPLICATION.
COUNSEL:
Arthur Campeau for applicant.
I. G. Whitehall and Paul J. Evraire for
respondents.
SOLICITORS:
Ogilvy, Cope, Porteous, Hansard, Marler,
Montgomery and Renault, Montreal, for
applicant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment
delivered orally in English by
THURLOW J.: This is an application for an
order
for directions as to the manner in which certain documents
deposited by the Commissioner of the Royal Canadian
Mounted Police may be used, having regard to the fact that
they include comments on individuals other than the parties
to this action.
The documents in question were sent to the
Court pursuant to Rule 1402 accompanied by a
letter dated August 14, 1974, which included
the following paragraph:
I wish to mention that the enclosed copies together with
those which are attached to the affidavit of the Honourable
Bryce Mackasey are classified as "Top Secret" and I recom
mend that they be handled in accordance with that classifi
cation by officials of the Federal Court.
These documents should not be confused
with those referred to in the affidavit of the
Honourable Bryce Mackasey dated August 13,
1974, in which privilege was claimed for certain
documents under subsection 41(2) of the Feder
al Court Act, and which were therefore not sent
to the Court, as well as for certain other docu
ments for which privilege was claimed under
subsection 41(1) of the Act, which were for
warded to the Court in sealed packages and
which have not yet been the subject of any
application to the Court or of any examination
by the Court. For these the wording of subsec
tion 41(1) makes it plain that they are not avail
able to the public for examination at any stage
as, even in the event of a decision by the Court
that they should be disclosed, it is only to the
parties that the disclosure may be made.
It may be useful at this point to read section
41:
41. (1) Subject to the provisions of any other Act and to
subsection (2), when a Minister of the Crown certifies to
any court by affidavit that a document belongs to a class or
contains information which on grounds of a public interest
specified in the affidavit should be withheld from produc
tion and discovery, the court may examine the document
and order its production and discovery to the parties, sub
ject to such restrictions or conditions as it deems appropri
ate, if it concludes in the circumstances of the case that the
public interest in the proper administration of justice out
weighs in importance the public interest specified in the
affidavit.
(2) When a Minister of the Crown certifies to any court
by affidavit that the production or discovery of a document
or its contents would be injurious to international relations,
national defence or security, or to federal-provincial rela
tions, or that it would disclose a confidence of the Queen's
Privy Council for Canada, discovery and production shall be
refused without any examination of the document by the
court.
Turning to the documents with which the
application is concerned, it seems clear that but
for the letter to which I have referred there
would have been no reason for the Registry to
refuse access to the documents to any member
of the public seeking to examine them under
Rule 201(3). It reads as follows:
Rule 201. (3) Any person may, subject to appropriate
supervision, and when the facilities of the Court permit
without interfering with the ordinary work of the Court,
(a) upon payment of $1 per hour or part of an hour,
inspect any Court file or the annex thereto, and
(b) upon payment of 20¢ per page, obtain a photocopy of
any document on a Court file or the annex thereto.
While the application was brought on behalf
of the respondents, when the matter first came
before the Court, counsel stated that he sought
no order but that he had felt it his duty to bring
to the Court's attention the fact that the docu
ments in question concerned individuals other
than the parties to the action, that when consid
ering what material was required to be sent to
the Court by Rule 1402, he had felt it necessary
to put into the record every piece of material
that had been available to the Commissioner in
making the decision attacked in these proceed
ings but that much of it was not going to be
helpful and that the result was that there had
been filed reports of a number of police investi
gations, interdepartmental memos and a good
deal of material dealing with what was referred
to as "a peripheral aspect of the case." His
position was simply that if Rule 201(3) was
allowed to operate without restriction then in
particular cases it might do injustice and in his
view when there are special circumstances the
Court must have some jurisdiction to control
the use of the documents and that as an officer
of the Court he considered that this was a
situation which should be brought to the atten
tion of the Court.
Counsel for the applicant supported the posi
tion of counsel for the respondents but went
further and asked that the Court order some
restriction on access by the public to the
documents.
It was at one point suggested that because
some of the documents represented police
reports it would be the duty of the Court on its
own to hold them privileged and in this connec
tion reference was made to Rogers v. Secretary
of State for the Home Department'. In my view
the manner in which privilege from production
on the ground of public interest is to be dealt
with has been substantially codified in section
41 of the Federal Court Act and where a Minis
' [1972] 2 All E.R. 1057.
ter under the provisions of that section makes
an affidavit claiming privilege for some of the
documents relevant to a proceeding and does
not make it with respect to others, it seems to
me that it will be a rare case in which the Court
will ever have occasion of its own motion to
hold any of such documents privileged from
production upon grounds of public interest,
especially where, as here, the documents in
question have already been disclosed to the
opposite party. I should add that nothing in
what I have seen of the documents in question
persuades me that the present is such a case.
Apart from the question of privilege from
production on the ground of public interest it
seems to me that interests of three kinds may be
involved in the disclosure to the public of docu
ments which are in the Court file or annex of
any particular case.
There is first the interest of parties to the
proceeding. In this connection it should be men
tioned that while the notice of motion referred
only to the fact that the documents included
comments on individuals other than parties to
the proceedings, Mr. Campeau in responding to
the application urged that they contain specula
tions, innuendoes and conclusions respecting his
clients not based on fact which they would have
no opportunity to refute in these proceedings
and that it was in the interests of the proper
administration of justice that public access to
them be restricted.
As I see it the sending of documents to this
Court by the public authority concerned, with
out a claim for privilege for them, is a sufficient
indication that there is no public interest which
requires that public access to them be restricted.
On the other hand the position with respect to a
person who launches a proceeding under section
28 of the Federal Court Act to have a decision
of a Federal Board, Commission or other tri
bunal reviewed and set aside is that he himself
puts in motion a procedure which requires that
the Court have made available to it the material
upon which the decision was reached and I
know of no principle other than that which
emerges from the judgment of the House of
Lords in Scott v. Scott 2 upon which he could
expect that documents which his demand has
caused to be sent to this Court should not be
subject to the ordinary incident of their pres
ence in the Court, that is to say, that the public
has access to them as provided by Rule 201(3).
The principle of Scott v. Scott as I understand it
is that the broad principle that the administra
tion of justice should be open to the public is
subject only to the more fundamental principle
that the chief object of Courts of justice must
be to secure that justice is done and that it is
only when public disclosure would prevent jus
tice being done that restriction of the public
right can be justified.
In the view I take of the matter there is
nothing in the documents the disclosure of
which would prevent the Court from dealing
with and deciding the case before it according to
the law. The fact, if it is fact, that the docu
ments contain speculations, innuendoes and
conclusions not based on facts can, if it is
material and if appropriate steps are taken, be
made to appear at the hearing and in that event
can be accorded the weight it deserves and may
even tend to help rather than hinder the cause
of the applicant.
I should add that in my view the letter which
accompanied the documents, including as it did
the paragraph which I have quoted, for which
Mr. Whitehall, who appeared as counsel for the
respondents, accepted full responsibility, is not
an acceptable way of certifying material to the
Court and the Administrator would have been
fully justified in declining to receive it. The
material which Rule 1402 requires a tribunal to
send to the Court must be sent unconditionally
and when so sent it becomes subject to the
public access thereto provided by Rule 201(3).
If there is any basis for any claim for different
treatment the proper procedure is to apply,
before sending the material, for an order vary
ing the case and for directions.
2 [1913] A.C. 417.
The second kind of interest that may be
involved is that of persons who are not parties
to the proceedings but who are referred to in the
documents or perchance have some interest of
their own in them. This is the interest that was
invoked in the notice of motion but it is to be
noted that no person in that category was repre
sented or heard on the motion. Such a person
could, it seems to me, apply for leave to inter
vene in the proceeding and ask for the Court's
protection of his rights, but even if he did, it is
not at all clear what protection the Court might
then be in a position to afford him against public
access to the documents. As we have not had
the benefit of argument on that phase of the
matter by any party having such an interest or
by one opposed to its recognition it would not
be appropriate to comment further on it beyond
observing that it may be that the only protection
such a party may have, in so far as he may be
defamed by the documents, may rest on the law
of libel and slander. See The Gazette Printing
Company v. Shallow'. One feature pertaining to
such an interest which, however, appears to me
to be abundantly clear is that if there are rea
sons which the party in possession of the docu
ments considers sufficient to justify any special
treatment of the documents at this stage the
matter should be raised on a motion for direc
tions before sending them to the Court.
The third kind of interest is that of a member
of the public who asks under the Rule to exam
ine documents in the Court. With respect to
documents for which privilege has been claimed
under section 41 of the Federal Court Act the
matter is governed by that enactment. They are
not subject to Rule 201(3) and are not open to
the public. But what of a person seeking to see
documents not within that category but who for
some reason, or for no reason at all, is refused
access by a clerk of the Registry? Such a case
appears to have arisen in England in 1959 when
Order 61, Rule 17 in regard to public access was
similar to Rule 201(3) but a Practice Master's
(1909) 41 S.C.R. 339.
Rule provided that depositions and all proceed
ings in the Queen's Bench Division should be
open to the inspection of parties or their solici
tors only. The person applying did not succeed
in getting access. See Ex Parte Associated
Newspapers Ltd. 4
The only Canadian authority which has come
to my attention on the subject is a passage in
the judgment of Duff, J. (as he then was), in The
Gazette Publishing Co. Ltd. v. Shallow where in
discussing a claim for privilege in a libel pro
ceeding the learned Judge said at page 364:
There seems, therefore, to be as little foundation in au
thority as in principle for this view put forward by the
appellants concerning the scope of the privilege; and one
may perhaps venture to say that it is with some satisfaction
that one arrives at this result. It is, I think, obviously
undesirable that, by the simple expedient of commencing
an action and filing a claim, anyboby should be able to
secure to himself the protection of the law in the dissemina
tion of the most outrageous libel. The publication of state
ments of fact which it is in the public interest to publish and
which are not untrue requires the protection of no privilege,
because without any such protection such a publication
entails no liability.
This view, as applicable to proceedings in the courts of
Quebec, receives additional confirmation from the provision
contained in rule 36, rules of practice, which seems to shew
that the contents of pleadings and other papers filed in the
course of litigation in the superior courts are not publici
juris. That rule provides as follows:
All parties to a suit shall be entitled to communication
of exhibits and other writings fyled therein;
a provision not easily to be accounted for if the public
generally had in respect of such documents rights—one need
not say equal—but at all analogous to the right of the public
to be present at and to observe all proceedings in open
court.
What this passage suggests is that the rights
of persons whether parties or not, to access to
documents in courts is properly the subject
matter of Rules of the Court. If that is the
correct view of the matter Rule 201(3) would
seem to govern the substantive right to access
by the public as well as the procedure and not
4 [1959] 3 All E.R. 878.
merely the procedure as Mr. Whitehall at one
point submitted. However, in this instance as
well, there has been no argument submitted by
parties having an interest either in supporting
such a position or in opposition thereto and
there is accordingly no occasion to make any
pronouncement on it.
In the result I would decline to give any
directions and I would dismiss the motion
therefor.
* * *
PRATTE J.: I agree that this motion should be
dismissed.
*
RYAN J.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.