A-118-74
Donald R. McCleery (Applicant)
v.
Commissioner of the Royal Canadian Mounted
Police (Respondent)
and
D. S. Thorson, Deputy Attorney General of
Canada (Mis -en-cause)
Court of Appeal, Thurlow, Heald and Ryan
JJ.—Ottawa, September 25 and 27, 1974.
Judicial review—Decision of RCMP Commissioner dis
missing applicant from force—Documents deposited by
Commissioner in Court—Leave to withdraw section 28
application—Order for return of documents to Commission-
er—Federal Court Act, ss. 29, 41—Rules 201, 342, 1402.
The applicant and another member of the Royal Canadian
Mounted Police made section 28 applications for review of
the Commissioner's decision dismissing them from the
force. Pursuant to Rule 1402, the respondent Commissioner
made a return of documents to the Court and applied for
directions as to the manner in which the deposited docu
ments should be used. On September 23, 1974, the Court
declined to make an order restricting public access to the
documents. Subsequently the Court granted leave to the
applicants to withdraw their section 28 applications. On the
concurrent application for return of the documents to the
Commissioner, to which the latter consented, it was asserted
by the present applicant that the documents contained
speculations, innuendoes and conclusions respecting him
self, which were not based on fact and would be inadmiss
ible in court.
Held, ordering return of the documents to the Commis
sioner, the general Rule that the Court retained permanently
documents submitted to it, was subject to exception in the
case of an order authorizing permanent removal (Rule
201(5)). The public interest in retaining every document
placed on file outweighed the interest of the applicants in
securing removal. But the respondent to a section 28
application, withdrawal of which had been permitted, ought
to be restored to his position before the proceeding was
commenced. The Commissioner had a legitimate and
weighty reason for seeking to maintain the secrecy of the
documents, which he sent to the Court in compliance with
Rule 1402; and as these are now not to serve the purpose
for which they were required, the respondent is entitled to
have them returned.
Rogers v. Secretary of State for the Home Department
[1972] 2 All E.R. 1057, applied.
APPLICATION.
COUNSEL:
Arthur H. Campeau for applicant.
I. G. Whitehall for respondent.
SOLICITORS:
Ogilvy, Cope, Porteous, Hansard, Marler,
Montgomery and Renault, Montreal, for
applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
delivered in English by
THURLOW J.: In this case, and in that of Gilles
G. Brunet v. The Commissioner of the Royal
Canadian Mounted Police et al, file A-119-74,
application was made on September 25, 1974
for leave to withdraw the section 28 proceeding
and for an order that the documents sent to the
Court by the Commissioner under Rule 1402 be
returned to the Commissioner. The purpose of
both applicants in seeking leave to withdraw
their section 28 applications and an order for
the return of the documents was to avoid the
consequences of the judgment of the Court,
pronounced on September 23, 1974, which
refused an order restricting public access to the
documents but temporarily withheld them from
public inspection pending a decision by the
applicants to seek leave to appeal from that
judgment to the Supreme Court of Canada.
The Court granted leave to the applicants to
withdraw their section 28 applications but
reserved judgment on the motion for return of
the documents and directed that the documents
be withheld from public inspection pending
judgment on that motion.
Generally speaking, apart from any statute or
statutory rule affecting the matter, the Court
itself is the master of its own records. It decides
what records shall be made and kept pertaining
to proceedings before it. The time honoured
practice has been to maintain in the Court per
manently all documents submitted to the Court
in the course of proceedings save when, in
response to the request of a party or persons
having a proprietary interest in particular docu
ments, the Court has made an order permitting
their removal from the Court's custody. It is this
background against which Rules 201(5), 342
and 1402(7) should be read. The general Rule is
Rule 201(5) but it is expressly made subject to
other provisions of the Rules which include 342
and 1402(7).'
Rule 201. (5) Neither a Court file nor anything in an
annex to a Court file shall leave the custody of the Registry,
a judge, a prothonotary, or a referee except pursuant to an
order of the Court or as otherwise provided by these Rules.
Rule 342. (1) The party who has put in an exhibit shall,
after the trial or other hearing in which the exhibit was used,
upon being required, by the Administrator, by notice in
writing (delivered to or addressed by mail to the party's
attorney or solicitor on the record at his actual address or
his address for service or to the party himself at his last
known actual address) to remove the exhibit from the cus
tody of the Court, apply to the Registry for the return of the
exhibit and shall, as long as an appeal in relation to the
decision following the trial or other proceeding is possible,
keep it, so far as is practicable regard being had to the
nature of the exhibit, duly marked and labelled, so that he
may be able to produce it so marked and labelled if he is
required so to do in the event of such an appeal.
(2) This rule applies to exhibits put in at a trial or other
hearing either before or after this Rule comes into force.
(3) Where the Administrator is of opinion that it is not
practicable to communicate a notice to a party under para
graph (1) by any of the means contemplated therein, the
notice shall be sufficiently communicated to the party by
being published in 3 issues of the Canada Gazette not less
than 2 weeks apart.
(4) Where a party does not apply for return of an exhibit
within 3 months of being required so to do under this Rule,
if the Court so orders, on an ex parte application by the
Administrator, he shall be deemed to have abandoned all
claims thereto, and
(a) if the exhibit is a document, it shall be destroyed by
the Administrator or otherwise disposed of as the Court
may, upon such application, direct, and
(b) in any other case, the exhibit shall be destroyed by the
Administrator or shall be deemed to have been vested in
Her Majesty in right of Canada subject to the control of
the Surplus Crown Assets Corporation, as the Court may,
upon such application, direct.
(5) The party who has put in an exhibit may, after the
Court has delivered judgment following a trial or other
hearing, upon filing a consent from all other parties, remove,
or authorize one of the other parties to remove, the exhibit
(Continued on next page)
Rule 342 provides for the removal of exhibits
by consent after proceedings have terminated
and even gives the Administrator authority to
require their removal when the circumstances
call for it. Rule 1402(7) provides that original
documents forwarded pursuant to Rule 1402(3)
are to be returned to the tribunal from which
they have come. In my view it is because origi
nal documents sent to the Court under Rule
1402(3) constitute the original record of the
tribunal from which they have come that the
Rule for returning them, when they have served
their purpose, exists. Neither Rule is, however,
applicable by its terms to the present situation
and the reasons urged for returning the docu
ments here in question are not, as I see it, those
on which such Rules are founded. These docu
ments are not required by a party to whom they
belong nor are they the original documents of a
tribunal. They are but copies of documents for
which privilege has not been claimed and the
interests urged are those of (a) the applicants
and (b) persons not parties in respect to whom
the documents contain defamatory comments.
The other exception to the general prohibition
of Rule 201(5) is that provided for by the words
"except pursuant to an order of the Court". The
Rules contain no definition of circumstances in
which such an order should be made but it is
obvious that such an order would be appropriate
to authorize the removal of a document from
the Registry for a temporary purpose, for exam
ple, if it were required as evidence in another
Court, and it does not follow that the Court
cannot authorize the permanent removal of a
document in the exercise of its inherent control
over its own records. In my opinion the Court
(Continued from previous page)
from the custody of the Court; and the party by whom an
exhibit is so removed shall keep it as though it were
removed under paragraph (1).
Rule 1402. (7) Where the tribunal has sent to the Registry
its original material as contemplated by paragraph (3)(a), the
Registry shall return that material to the tribunal when the
matter has been finally disposed of.
has ample authority to do so and the substantial
problem that arises on this application is simply
to determine the relative weights of the reasons
for retaining the documents here in question and
those for returning them to the Commissioner.
Turning then to this problem, from the point
of view of the interest of the applicants in
having defamatory matter removed, I should
have thought that even the withdrawal of the
proceedings by the parties who instituted them,
and thus put in motion the procedure which led
to the documents being sent to the Court, would
afford them no basis for asking for an order for
their removal from the Court. Rather, it seems
to me that the fact that their actions have been
the occasion for the deposit of the documents in
the Court is, as against them, a reason why the
documents should not be released and this
regardless of whether they are defamatory of
the applicants themselves or of persons who are
not parties to the proceeding or both. Moreover,
the withdrawal of the proceedings in the circum
stances of this case is calculated to generate
public suspicion as to why it has been done and
suggests that the public interest in retaining in
the Court every document that has at any time
been on the file far outweighs any interest the
applicants have in securing their removal.
On the other hand, it appears to me that from
the point of view of the party against whom a
section 28 proceeding has been brought the
withdrawal of the proceeding brings into play
the principle that he ought to be restored, as far
as possible, to the same position that he was in
immediately before the proceeding was com
menced. Here the documents in question are
copies of documents which have come into
existence in the course of or as a result of police
investigations and in the course of the adminis
tration of the force, and which the force treats
as secret. At least some of these documents
would have been privileged from discovery and
production even to parties to litigation under the
law as it was before the enactment of section
41, as exemplified in Rogers v. Secretary of
State for the Home Department 2 . The basis of
such a privilege would have been the public
interest involved. From the point of view of the
Commissioner, therefore, there is a legitimate
and weighty reason for seeking to maintain the
secrecy of the documents and it seems to me
that as they were sent by him to the Court
simply to comply with the Rule and are now not
to serve the purpose for which the Rule
required that they be sent the Commissioner is
entitled to ask for their return. By his support of
the motion he has done so.
Finally, it is to be observed that as a result of
the withdrawal of the proceedings these docu
ments will not serve as the basis or substratum
of any judgment that may be rendered between
the parties on the decisions of the Commission
er which were attacked in the section 28
application since there is no judgment to be
rendered thereon. For the same reason they will
not serve as a record for the future of the
substratum on which such a judgment of the
Court was founded. They are to some small
extent involved in the judgment rendered on
September 23 on the motion for directions, but
from this point of view there is even less reason
why they should be retained in the custody of
the Court than there is in the case of exhibits
produced at a trial, which under Rule 342(5)
may be removed by consent after the proceed
ings have been concluded.
In the result I am of the opinion that the
balance favours the return of the documents to
the Commissioner and I would so order.
* *
HEALD J.: I concur.
* * *
The following are the reasons for judgment
delivered in English by
RYAN J.: I agree that the application for an
order that the documents sent to the Registry by
the Commissioner under Rule 1402 be returned
should be granted. In expressing this agreement
2 [1972] 2 All E.R. 1057.
I confess to some hesitation. My hesitation
flows principally from my concern over removal
of documents from a Court file which is open to
public inspection and the suspicion that such
removal may occasion. It is clear, however, that
the Rules do contemplate circumstances in
which removal of material may occur. Rule 342
provides that exhibits may be withdrawn from
the Registry after judgment; Rule 1402(7) that
original documents sent to the Registry by a
tribunal in a section 28 proceeding may be
returned; and, in - my view, paragraph (5) of Rule
201 contemplates that other types of material
may be permanently withdrawn from a Court
file if the Court so orders. In this respect, it is
my opinion that the discretionary power of the
Court under Rule 201(5) is not limited to
authorizing temporary removal. We are thus
vested with a discretionary power under Rule
201(5), a power which we have a duty to exer
cise in a proper case. Exercise of the discretion
thus vested in the Court may require, as it does
in this case, a careful weighing of conflicting
interests.
The applicant has asserted that the documents
contain speculations, innuendos and conclusions
respecting himself which are not based on fact,
matters which would not be admissible in evi
dence in a court. Because of this he has decided
to withdraw his section 28 application to review
and set aside the Commissioner's decision to
discharge him; he submits it is appropriate on
discontinuance of the proceedings to take the
documents from the public file and return them
to the files of the Commissioner since they are
no longer required for purposes of the proceed
ing in respect of which they were delivered to
the Registry. The section 28 application having
been withdrawn, there is, it is submitted, no
possible purpose, in relation to the administra
tion of justice by the Court, to be served by
their continuing presence on the file. The pur
pose of the presence of such documents on a
file open to public inspection must, it is suggest-
ed, be sought in its relation to the social interest
in the administration of justice by our courts, an
interest traditionally served by the rule that
trials and judicial proceedings analogous to
trials must (except in very special cases) be
conducted in open court. Access to relevant
documents before trial may serve a useful pur
pose in affording the public an opportunity to
become acquainted with the issues and thus to
participate as spectators at the trial in a more
meaningful way. Once the prospect of trial dis
appears, the purpose served by accessibility to
the documents disappears also. This submission
has some force. The presence on the Court file
of documents such as those in question in this
case may, however, serve other purposes as
well: for example, they serve to complete the
record of the case in all its aspects. It may also
be that there is a broader purpose involved in
making the court file and its annex available for
public inspection. The purpose may well be to
extend the concept of the "open court" to
encompass materials that come into existence
before the actual trial begins. This objective
goes beyond making documents available for
study in preparation for attendance at court as
an observer.
There is another consideration. Once docu
ments are on a public file, their withdrawal may
occasion suspicion. The case is settled or with
drawn, but why? Is this merely a matter for the
parties or is there a public interest involved? I
think there is a public interest: the social inter
est involved here is the importance of keeping
the flow of justice in the courts untainted by
suspicion.
There is to be weighed in determining wheth
er to exercise our discretion the interest assert
ed by the applicant in having his reputation
protected against the innuendos and conclusions
respecting himself which are based on material
that would not be admissible in evidence in
court. There is, of course, a social as well as an
individual interest involved in protecting
individual reputations. But the fact is that the
applicant himself initiated the proceedings, a
step that predictably might involve some
unpleasant consequences. In my opinion, the
applicant's interest asserted here is entitled to
some, but not a great deal of, weight.
The respondent has not joined in the applica
tion to return the documents, but has consented
to it. The documents in question are in many
instances copies of investigative reports that
quite obviously would have remained in Mount
ed Police files had it not been for the section 28
application. They were sent to the Registry of
the Court in compliance with the Rules so that
the legality of the applicant's discharge could be
tested. Now that the application is withdrawn,
why should not the respondent be placed in the
same position in respect of reports of this char
acter as he was in before the proceedings were
begun? My brother Thurlow has noted "At least
some of these documents would have been
privileged from discovery and production even
to parties to litigation under the law as it was
before the enactment of section 41". He adds
that "The basis of such a privilege would have
been the public interest involved".
I would conclude on balance that this is a
proper case for the exercise of our discretion,
and I agree that the motion should be granted.
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.