CEA-1-85
Jack Gold (Plaintiff) (Applicant)
v.
The Queen in right of Canada (Defendant)
(Respondent)
Addy J.—Ottawa, April 18 and 30, 1985.
Evidence — Disclosure of information — Objection to dis
closure based on injury to national security — Certificate
stating each document examined and considered — Documents
numbered and considered under specific headings relating to
national security — Application dismissed — Certificate ade
quate and complete — Further identification potentially
divulging important information — Imbalance between public
interest served by non-disclosure to protect national security
and public interest served by disclosure to further claim for
damages — Canada Evidence Act, R.S.C. 1970, c. E-10, s.
36.2 (as enacted by S.C. 1980-81-82-83, c. 111,s. 4).
Practice — Discovery — Production of documents —
Application pursuant to s. 36.2 to review determination of
objection to disclosure based on injury to national security —
Action for damages at discovery stage — Applicant not know
ing nature of evidence sought, nor whether relevant as helpful
to him or respondent — Rule in Goguen v. Gibson, [1983] 1
F.C. 872; affd. [1983] 2 F.C. 463 (C.A.), requiring information
sought to be essential to case, not- merely confirmatory, and
matter not provable other than by disclosure, applied —
Balancing of public interests — Fletcher Timber Ltd. v. Attor-
ney-General, [1984] 1 NZLR 290 (C.A.), dealing with disclo
sure of information at discovery stage, distinguished — Onus
of proof on applicants seeking evidence for civil litigation
greater than in criminal cases — Canada Evidence Act, R.S.C.
1970, c. E-10, s. 36.2 (as enacted by S.C. 1980-81-82-83, c.
111, s. 4).
This is an application pursuant to section 36.2 of the Canada
Evidence Act to review the determination of an objection to
disclosure of information, made on the basis of injury to
national security. The purpose of the application is to allow the
plaintiff to obtain documentary information which might prove
or support a claim for damages resulting from a conspiracy
involving servants of the Crown. The action is at the general
discovery stage. The applicant did not know the nature of the
evidence sought. The certificate stated that each document was
examined and carefully considered. The documents were num
bered and considered under specific headings relating to nation
al security.
Held, the application should be dismissed.
The certificate is adequate and complete. It does not seek to
cover a group of documents falling within a certain class,
without consideration of each document. Any further descrip
tion of the documents might divulge important information.
The Court is not required to examine the documents where
such an obvious imbalance exists between the public interests to
be served, i.e., non-disclosure to protect national security versus
disclosure to further a claim for monetary compensation.
Inspection is also precluded by the fact that the information
is not required as evidence at trial, but merely for general
discovery to inquire whether any helpful evidence might be
available. The applicant cannot indicate that he requires any
particular piece of evidence which is essential to prove his case.
He is therefore unable to satisfy the Court that the matter
which he wishes to prove by means of the protected evidence
could not be established in any other manner. The rule that the
specific evidence sought be absolutely essential to the appli
cant's case, as opposed to confirmatory, and that the Court be
satisfied that the matter cannot be proven in any manner other
than by the divulging of the information sought was established
in Goguen v. Gibson, [1983] 1 F.C. 872; affd. [1983] 2 F.C.
463 (C.A.).
The only case referred to supporting the contention that
information should be revealed or examined at the discovery
stage was Fletcher Timber Ltd. v. Attorney-General, [1984] 1
NZLR 290 (C.A.). It is distinguishable on several grounds. In
so far as the Fletcher case establishes a rule that the onus is on
the Crown, it does not represent Canadian law, nor does it
conform to the English authorities on the subject. The appli
cant argued that, because in civil cases the onus of proof is on
the plaintiff, the rule in the Goguen case that there is a
preliminary onus on a person opposing a certificate of objection
founded on national security to establish a vital need for
specific evidence, does not apply to applicants in civil cases.
Since in civil cases, the issue is normally monetary compensa
tion, as opposed to the reputation and freedom of the individu
al, the issues in criminal cases, the onus should be greater on
applicants who are seeking evidence for the purpose of civil
litigation.
Information may not be restricted pursuant to section 36.2 of
the Act where there has been disclosure to a person judged to
be a security risk, made during an interview on the subject-
matter of security trustworthiness where no warning not to
divulge the information was given.
Quaere whether the Crown is capable of being sued for
damages for conspiracy. The Court refrained from ruling there
on since that issue was not before it.
CASES JUDICIALLY CONSIDERED
APPLIED:
Goguen v. Gibson, [1983] 1 F.C. 872; affd. [1983] 2 F.C.
463 (C.A.).
DISTINGUISHED:
Fletcher Timber Ltd. v. Attorney-General, [1984] 1
NZLR 290 (C.A.).
REFERRED TO:
Kevork v. The Queen, [ 1984] 2 F.C. 753.
COUNSEL:
Dougald Brown for plaintiff (applicant).
I. Whitehall, Q.C., D. Rennie and D. Akman
for defendant (respondent).
SOLICITORS:
Nelligan/Power, Ottawa, for plaintiff (appli-
cant).
Deputy Attorney General of Canada for
defendant (respondent).
The following are the reasons for order ren
dered in English by
ADDY J.: The plaintiff, who is suing the Crown
for damages, has applied, pursuant to section 36.2
of the Canada Evidence Act, R.S.C. 1970, c. E-10,
as enacted by S.C. 1980-81-82-83, c. 111, s. 4, to
review the determination of an objection to disclo
sure of information by one John Michael Shoe
maker, Senior Assistant Deputy Solicitor General
of Canada. The certificate of objection to disclo
sure of the information is made on the basis of
injury to national security. Shortly before the
hearing, an amended certificate dated 29 March,
1985 was issued for the purpose of removing any
objection to disclosure of what had already been
communicated to the applicant orally during two
interviews with him and to also remove any objec
tion or any replies made by the plaintiff during
those interviews.
It was pointed out that the reason why these
matters were included in the first certificate was to
attempt to limit the damage which might be
caused by further disclosure of what had been
said. It was felt at the time that there was a danger
that the very nature, type and form of the ques
tions asked might reveal matters which might
endanger national security. I accept this explana
tion as to why it was felt that the first certificate
should exclude these matters from being further
divulged. Having regard to the amended certificate
and also to the statement of counsel for the
respondent that he was no longer objecting to the
documentary disclosure of this particular informa
tion, I am ordering that the applicant be served
forthwith with amended documents which must
include those matters. Any statement or remark as
to the attitude or demeanor of the applicant during
those two interviews must also be included.
Any disclosure to a person who is judged to be a
security risk to the extent that that person cannot
be security cleared beyond the confidential level
and when, as in the present case, the disclosure is
made in the course of a formal interview with that
person on the very subject-matter of a security
trustworthiness and where the person has not been
warned by the security officer interviewing him or
by any other person either before or after the
interview, to refrain from further divulging the
information received, the information can no
longer, in my view, be considered secret or capable
of being further restricted pursuant to section 36.2
of the Canada Evidence Act. My order is based on
a finding that, in such circumstances and to that
limited extent the section cannot at law be held to
be operative. Thus, even if an amended certificate
had not been issued, I would have ordered
disclosure.
The sole reason for the application is to allow
the plaintiff to obtain documentary information in
the possession of the respondent which might
somehow prove or support a claim for damages or
lead to further sources of information or evidence
capable of establishing the existence of an alleged
conspiracy against him, in which servants of the
Crown might have been engaged while performing
their duties as servants.
Notwithstanding arguments advanced by coun
sel for both parties that the Crown can be sued for
damages for conspiracy and that such a suit is
capable at law of being successfully prosecuted, I
entertain some reservations on the subject. How
ever, since this is not an issue before me, I will, for
the purpose of the present application only, refrain
from ruling on the matter and consider the merits
of the application on the basis that the action is at
law fully maintainable.
The action is only at the stage of general discov
ery before trial. Counsel for the applicant quite
candidly stated that he had no idea what the
nature of the evidence in the possession of the
respondent might be or what precisely he might
expect to find. All that he knew was that the
documents or part of the documents to which
disclosure was objected were apparently relevant
for the purposes of discovery because of the affida
vit on production to that effect filed by the
respondent. He could not, of course, even state
whether the information sought was relevant
because it would be helpful to him or was relevant
because it might be helpful to the defendant
[respondent] .
Although in this particular case the Crown is a
party to the action in the context of which the
evidence is being sought and although the certifi
cate was issued by one of its servants, there is no
question whatsoever of the certificate not being a
bona fide one.
In the certificate itself it is clearly stated that
each document was examined and carefully con
sidered. The documents were numbered from 1 to
150 and were considered under 5 specific headings
where injury to national security was judged to be
at risk, namely: human and technical sources of
information, targets, methods of operation and
operational and administrative policies, telecom
munications and cypher systems and, finally, rela
tionships with foreign agencies. Some documents
were declared to fall under two or more of the five
categories. The certificate is therefore clearly not
one which, as in many cases, merely seeks to cover
a group of documents falling within a certain class
without consideration being given to each individu
al document.
I do not accept the argument that the docu
ments have to be described other than by a
number for it seems clear that any description as
to date, nature of the document, identity of the
originator or of the addressee, general description
of the content, might very well divulge very impor
tant information to a trained and informed person.
I therefore consider the certificate to be quite
adequate and complete.
In the face of such a certificate where, on the
one hand, we have the public interest to be served
by non-disclosure consisting of protection of such a
vital matter as national security and, on the other
hand, a public interest in disclosure of information
which in essence would be in furtherance of a
claim for monetary compensation, it is difficult for
me to conceive of any set of circumstances where
the court would be required to consider it advis
able to examine the documents covered by the
certificate, as there exists such an obvious imbal
ance between the two public interests to be served.
In addition there are several preliminary hurdles
which, in my view, absolutely preclude any such
inspection. In the first place, the information is not
required as evidence at trial but merely for general
discovery to enquire whether any helpful evidence
might in fact be available. Secondly, the applicant
is unable to point to or to indicate that he requires
any particular piece of evidence which is essential
for him to prove his case. He has, in fact, no real
evidence of conspiracy and is seeking to discover
some by examining the documents objected to or
certain portions of other documents which have
been blanked out. He is therefore also completely
unable to sastisfy the Court of the further essential
requirement that the matter which he wishes to
prove by means of the protected evidence could not
be established in any other manner.
The rule that the specific evidence sought be
absolutely essential to the applicant's case as
opposed to being merely confirmatory and that the
Court also be satisfied that the matter cannot be
proven in any manner other than by the divulging
of the information sought, has been fully and
clearly established by Thurlow C.J. sitting as the
designated judge in Goguen v. Gibson, [1983] 1
F.C. 872. It was affirmed by our Court of Appeal
in [1983] 2 F.C. 463.
The Goguen case both at the trial and appeal
levels reviewed extensively and approved the Eng-
lish authorities and firmly established the two-
stage procedure to be adopted by our Court in
applications such as the present one. No useful
purpose would be served by again reviewing the
law on the subject. I applied these principles in the
recent case of Kevork v. The Queen, [ 1984] 2 F.C.
753.
I cannot conceive of Parliament having intended
that section 36.2 would ever be available to assist a
litigant for purposes of general discovery or even
at the stage of general discovery of documents in a
civil action, where national security is a risk.
The only case to which counsel for the applicant
could refer in support of his contention that the
information should be revealed or at least that the
document should be examined was a decision of
the New Zealand Court of Appeal, namely, the
case of Fletcher Timber Ltd. v. Attorney-General,
[1984] 1 NZLR 290.
Although the Fletcher case does deal with the
divulging of information at the discovery stage, it
is clearly distinguishable from the present case on
the following grounds, at least:
1. The certificate was not one which referred to
particular documents but merely to a class of
documents;
2. It did not state the precise grounds on which the
documents were judged to be injurious to public
interest;
3. Most importantly, the public interest involved
was the protection of certain information supplied
in confidence to the Crown and in no manner
related to national security. In fact, the statute
under which the decision rests, namely the Official
Information Act 1982, Statutes of New Zealand
1982, Vol. 3, No. 156, provides that, where nation
al security is involved, the certificate is conclusive
and, therefore, cannot be questioned by the Court
(refer section 6). In this respect, it resembles
former subsection 41(2) of the Federal Court Act
[R.S.C. 1970 (2nd Supp.), c. 10] which has been
repealed and replaced by section 36.2 of the
Canada Evidence Act.
Finally, in so far as the Fletcher case might be
interpreted as establishing a rule to the effect that
the onus is not on the applicant but on the Crown
in cases such as the present one, I am of the view
that it does not represent the law of Canada nor
does it indeed conform to the English authorities
on the subject.
I do not accept the argument of counsel for the
applicant that, because in civil cases the onus of
proof is on the plaintiff while in criminal cases it is
on the Crown, the rule laid down in the Goguen
case, supra, to the effect that there is a prelim
inary onus on a person opposing a certificate of
objection founded on national security to establish
a vital need for specific evidence does not apply to
applicants in civil cases. On the contrary, I am
firmly of the view that, since in civil cases the issue
is normally monetary compensation as opposed to
the reputation and freedom of the individual in
criminal cases, the onus, if anything, should be
greater on applicants who are seeking evidence for
the purpose of civil litigation.
For the above reasons the application is dis
missed but, under the circumstances and in view of
the fact that the original certificate objected to
was too broad, there will be no costs.
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.