A-952-88
Attorney General of Canada, on behalf of the
Minister of Industry, Trade and Commerce
(Appellant)
v.
Central Cartage Company, Detroit International
Bridge Company, and Canadian Transit Company
(Respondents)
INDEXED AS: CANADA (ATTORNEY GENERAL) V. CENTRAL
CARTAGE CO. (CA.)
Court of Appeal, Iacobucci C.J., Urie and Mar-
ceau JJ.A.—Ottawa, February 27 and May 3,
1990.
Crown — Practice — Privilege — FIRA application regard
ing transfer of shares in international bridge company —
Production of documents ordered — Clerk of Privy Council
objecting to disclosure, certifying eight documents confidence
of Queen's Privy Council — Trial Judge ordering documents
produced unless proper certificate under Canada Evidence Act,
s. 36.3 filed — Judge ordering certificate to contain certain
information — Judge incorrectly interpreting s. 36.3 — S. 36.3
infringing neither Charter nor Bill of Rights.
Constitutional law — Charter of Rights — Equality rights
— Whether Charter, s. 15 contravened by Canada Evidence
Act, s. 36.3 giving Crown as litigant right to suppress evidence
when right not available to others — Respondents, as corpora
tions, cannot rely on s. 15 which protects individuals — S. 36.3
grant of Crown privilege not distinguishing between classes of
individuals on basis of enumerated or analogous ground —
Crown not individual with whom comparison can be made.
Constitutional law — Charter of Rights — Life, liberty and
security — Whether Canada Evidence Act, s. 36.3 contraven
ing Charter, s. 7 — Respondents, as corporations, unable to
rely on s. 7 — Not within exception in Andrews v. Law Society
of British Columbia as main proceeding (application under
Foreign Investment Review Act, s. 20) not penal in nature.
Bill of rights — Whether Government's disallowance of
transfer of shares in international bridge company and refusal
to disclose documents under Canada Evidence Act, s. 36.3
deprivation of right to enjoyment of property without due
process contrary to Bill of Rights, s. 1(a) — Respondents, as
corporations, unable to rely on s. 1(a) which applies only to
individuals — Whether s. 36.3 contravening s. 2(e) right to fair
hearing in accordance with principles of fundamental justice
by preventing adequate statement of case — `Principles of
fundamental justice" qualify "right to fair hearing" — Bill of
Rights, s. 2(e) narrower in scope than Charter, s. 7 — Crown
privilege attaching to Cabinet confidence exception to audi
alteram partem rule — Right to fair hearing not denied given
limited purpose and scope of Foreign Investment Review Act,
s. 20 proceeding.
Foreign investment review — Main proceeding application
under Foreign Investment Review Act, s. 20 for Court order
implementing Cabinet decision disallowing transfer of shares
in international bridge company — Appeal from order requir
ing production of documents unless certificate of Clerk of
Privy Council refiled in proper form under Canada Evidence
Act, s. 36.3 — Trial Judge erred in construction of s. 36.3 —
Limited purpose and scope of s. 20 proceeding considered in
relation to whether s. 36.3 contrary to Canadian Bill of Rights,
s. 2(e).
This was an appeal from an order to produce certain docu
ments alleged to be privileged unless the appellant files a
certificate in proper form as required by section 36.3 of the
Canada Evidence Act. The Clerk of the Privy Council objected
to the disclosure of certain documents in the main proceeding,
an application under section 20 of the Foreign Investment
Review Act (FIRA), by certifying that each of the documents
was a confidence of the Queen's Privy Council. Further to an
application to strike the certificate, the Trial Judge made the
order under appeal. He held that the certificate must provide
sufficient information to enable a Court to determine whetfrèrr
the information described in the certificate is properly catego
rized. He held that the document must be named and the
certificate should state the date of the document, from whom
and to whom it was sent and its subject-matter. The appellant
argued that it was not open to the Court to require such
disclosure. The respondents contended that section 36.3 of the
Canada Evidence Act is invalid as it infringes sections 7 and 15
of the Charter and paragraphs 1(a) and 2(e) of the Canadian
Bill of Rights.
Held, the appeal should be allowed.
The Trial Judge had incorrectly interpreted section 36.3.
That section relates only to an objection to disclosing informa
tion that is a "confidence of the Queen's Privy Council for
Canada". Unlike sections 36.1 and 36.2 which reflect a balanc
ing of the public interest in non-disclosure and that in the
administration of justice, section 36.3 is absolute. Subject only
to compliance with the requirements of the section, the decision
of the Clerk that any information constitutes a confidence of
the Queen's Privy Council is not subject to review by any court.
A court cannot ga behind the certificate and examine the
documents. It can only determine whether the certificate on its
face asserts a privilege within the statutory limitations. The
certificate must track the language of the subsection to assure
litigants and the courts that the Clerk of the Privy Council has
directed his mind to the statutory requirements.
The respondents argued that section 36.3 infringed Charter,
section 7 by depriving them of security of the person without
compliance with fundamental justice. But as corporations, they
cannot invoke section 7 as it is limited to human beings. The
exception to this principle, that any accused may defend a
criminal charge by arguing that the law under which the
charge is brought is constitutionally invalid, does not apply
because the main proceeding under section 20 of FIRA is not
penal.
Similarly, respondents, as corporations, could not succeed
with the submission that Charter, section 15 is contravened
because their right of equality under the law is infringed by
section 36.3 which gives to the Crown, as a party litigant, a
right to suppress evidence—confidences of the Queen's Privy
Council—not available to other litigants. In any event, accord
ing to the tests in Andrews v. Law Society of British Columbia,
section 15 had not been contravened. As to whether the
respondents have received unequal treatment, the Crown could
not be equated with an individual. It represents the State and
the interests of all members of Canadian society. The Crown, in
section 36.3 of the Canada Evidence Act, is not an individual
with whom a comparison can be made to determine whether a
section 15 violation has occurred. In giving the Crown a
privilege against discovery with respect to certain information,
section 36.3 distinguishes between classes of individuals neither
on the basis of any enumerated grounds in subsection 15(1) nor
on any analogous grounds.
The respondents argued that the Government's disallowance
of the transfer of shares and the use of section 36.3 amount to a
deprivation of the enjoyment of property without due process,
contrary to the Canadian Bill of Rights, paragraph 1(a).
Again, this paragraph applies to individuals and does not
extend to corporations.
Finally, the respondents submitted that section 36.3 violated
paragraph 2(e) of the Canadian Bill of Rights in the context of
the proceeding contemplated by section 20 of FIRA. It was
argued that the right to a fair hearing in accordance with
fundamental justice is enshrined in paragraph 2(e) and funda
mental justice includes the right to state one's case adequately.
As section 36.3 prevents the adequate statement of their case,
the respondents contend that it violates paragraph 2(e) of the
Canadian Bill of Rights. The fair hearing guaranteed in para
graph 2(e) is not, however, a frozen concept that remains static.
The guarantee of a fair hearing in paragraph 2(e) should be
given a meaning that recognizes not only the interpretation and
evolution of the term over time but also the particular circum
stances involved. In addition, the words "principles of funda
mental justice" qualify the "right to a fair hearing" and
operate differently from Charter, section 7 because in the latter
they qualify much more fundamental rights, namely the "right
to life, liberty and security of the person". Consequently,
paragraph 2(e) is much narrower in scope than section 7 of the
Charter in that the former deals solely with procedural fairness.
Procedural fairness implies the right to state one's case ade
quately which is part of the rule audi alteram partem — to
hear the other side. There are circumstances where the audi
alteram partem rules have been qualified over time by common
law and by statute. The principle of Crown privilege attaching
to Cabinet confidences is established as one of these exceptions.
Finally, use of a section 36.3 certificate does not violate para
graph 2(e) of the Canadian Bill of Rights given the limited
purpose and scope of section 20 of FIRA i.e. the making of a
court order implementing a Cabinet decision. The operation of
a section 36.3 certificate does not infringe the respondents'
guarantee of a fair hearing under paragraph 2(e), especially
when at the main hearing the respondents will be able to
advance any argument they think relevant.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canada Evidence Act, R.S.C. 1970, c. E-10, ss. 36.1 (as
enacted by S.C. 1980-81-82-83, c. 111, s. 4), 36.2 (as
enacted idem), 36.3 (as enacted idem).
Canadian Bill of Rights, R.S.C., 1985, Appendix III, ss.
1(a), 2(e).
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.) [ R.S.C., 1985, Appendix II,
No. 44], ss. 1, 7, 15.
Constitution Act, 1982, Schedule B, Canada Act 1982,
1982, e. 11 (U.K.) [R.S.C., 1985, Appendix II, No.
44], s. 52.
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s.
41(1),(2).
Foreign Investment Review Act, S.C. 1973-74, c. 46, s. 20
(rep. by S.C. 1985, c. 20, s. 46).
CASES JUDICIALLY CONSIDERED
APPLIED:
Smith, Kline & French Laboratories Limited v. Attorney
General of Canada, [1983] 1 F.C. 917; (1983), 38 C.P.C.
182; 76 C.P.R. (2d) 192 (T.D.); Dywidag Systems Inter
national, Canada Ltd. v. Zutphen Brothers Construction
Ltd., [1990] 1 S.C.R. 705; (1990), 106 N.R. 11; National
Anti-Poverty Organization v. Canada (Attorney-Gener
al), [1989] 3 F.C. 684; (1989), 60 D.L.R. (4th) 712; 26
C.P.R. (3d) 440; 28 F.T.R. 160; 99 N.R. 181 (C.A.);
leave to appeal refused [1989] 2 S.C.R. ix; Smith, Kline
& French Laboratories Ltd. v. Canada (Attorney Gener
al), [1987] 2 F.C. 359; (1986), 34 D.L.R. (4th) 584; 11
C.I.P.R. 181; 12 C.P.R. (3d) 385; 27 C.R.R. 286; 78
N.R. 30 (C.A.); Andrews v. Law Society of British
Columbia, [1989] 1 S.C.R. 143; (1989), 56 D.L.R. (4th)
1; [1989] 2 W.W.R. 289; 34 B.C.L.R. (2d) 273; 36
C.R.R. 193; 91 N.R. 255; Rudolph Wolff & Co. Ltd. v.
Canada, [1990] 1 S.C.R. 695; (1990), 106 N.R. 1; New
Brunswick Broadcasting Co., Limited v. Canadian
Radio-television and Telecommunications Commission,
[1984] 2 F.C. 410; (1984), 13 D.L.R. (4th) 77; 2 C.P.R.
(3d) 433; 12 C.R.R. 249; 55 N.R. 143 (C.A.); Re B.C.
Motor Vehicle Act, [1985] 2 S.C.R. 486; (1985), 24
D.L.R. (4th) 536; [1986] 1 W.W.R. 481; 69 B.C.L.R.
145; 23 C.C.C. (3d) 289; 48 C.R. (3d) 289; 18 C.R.R.
30; 36 M.V.R. 240; 63 N.R. 266; Canada (Attorney
General) v. Central Cartage Co., T-9047-82, F.C.T.D.,
Strayer J., order dated 15/6/89, not yet reported.
DISTINGUISHED:
R. v. Big M Drug Mart Ltd. et al., [1985] 1 S.C.R. 295;
(1985), 60 A.R. 161; 18 D.L.R. (4th) 321; [1985] 3
W.W.R. 481; 37 Alta. L.R. (2d) 97; 18 C.C.C. (3d) 385;
13 C.R.R. 64; 85 C.L.L.C. 14,023; 58 N.R. 81.
REVERSED:
Canada (Minister of Industry, Trade and Commerce) v.
Central Cartage Co. et al. (1988), 23 F.T.R. 174
(F.C.T.D.).
REFERRED TO:
Conway v. Rimmer, [1968] A.C. 910 (H.L.); Duncan v.
Cammell, Laird & Co. Ld., [1942] A.C. 624 (H.L.);
Landreville v. The Queen, [1977] 1 F.C. 419; (1976), 70
D.L.R. (3d) 122 (T.D.); Commission des droits de la
personne v. Attorney General of Canada et al., [ 1982] 1
S.C.R. 215; Canada (Auditor General) v. Canada (Min-
ister of Energy, Mines and Resources), [1987] 1 F.C.
406; (1987), 35 D.L.R. (4th) 693; 27 Admin. L.R. 79; 73
N.R. 241 (C.A.); leave to appeal dismissed [1987] 1
S.C.R. v; (1987), 83 N.R. 80; Singh et al. v. Minister of
Employment and Immigration, [1985] 1 S.C.R. 177;
(1985), 17 D.L.R. (4th) 422; 12 Admin. L.R. 137; 14
C.R.R. 13; 58 N.R. 1; Duke v. The Queen, [1972] S.C.R.
917; (1972), 28 D.L.R. (3d) 129; 7 C.C.C. (2d) 474; 18
C.R.N.S. 302; R. v. Beare, [1988] 2 S.C.R. 387; (1988),
55 D.L.R. (4th) 481; [1989] 1 W.W.R. 97; 71 Sask. R. 1;
45 C.C.C. (3d) 57; 66 C.R. (3d) 97; 36 C.R.R. 90; 88
N.R. 205; Carey v. Ontario, [1986] 2 S.C.R. 637; (1986),
58 O.R. (2d) 352; 35 D.L.R. (4th) 161; 22 Admin. L.R.
236; 30 C.C.C. (3d) 498; 14 C.T.C. (2d) 10; 72 N.R. 81;
20 O.A.C. 81.
AUTHORS CITED
de Smith's Judicial Review of Administrative Action, 4th
ed., by J. M. Evans, London: Stevens & Sons Limited,
1980.
Hogg, Peter W. "A Comparison of the Canadian Charter
of Rights and Freedoms with the Canadian Bill of
Rights" in Beaudoin, Gérald -A. and Ratushny, E.
"The Canadian Charter of Rights and Freedoms", 2nd
ed., Toronto: Carswell, 1989.
COUNSEL:
Eric A. Bowie, Q.C. and Donald J. Rennie for
appellant.
Gordon F. Henderson, Q. C. and Emilio S.
Binavince for respondents.
SOLICITORS:
Deputy Attorney General of Canada for
appellant.
Gowling, Strathy & Henderson, Ottawa, for
respondents.
The following are the reasons for judgment
rendered in English by
IACOBUCCI C.J.: This is an appeal by the Attor
ney General of Canada, on behalf of the Minister
of Industry, Trade and Commerce ("appellant")
from the order' of Mr. Justice Teitelbaum to
produce, within 30 days of the order, certain docu
ments alleged to be privileged unless the appellant
files a certificate in proper form as required by
section 36.3 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] (now section 39, R.S.C., 1985, c. C-5).
This appeal arises within the context of the main
proceeding between the parties which is an
application by the appellant under section 20 of
the Foreign Investment Review Act ("FIRA"). 2
That application, which is yet to be heard, is for an
order of the Court implementing a decision of the
Governor in Council which rendered nugatory the
transfer of shares of the Canadian Transit Com
pany to Central Cartage Company and Detroit
International Bridge Company, the corporations
which are the respondents herein.
Numerous interlocutory proceedings have taken
place regarding the main proceeding and indeed
judgments and reasons in two other appeals to this
1 See order and reasons for order of Teitelbaum J., Canada
(Minister of Industry, Trade and Commerce) v. Central Cart-
age Co. et al. (1988), 23 F.T.R. 174 (F.C.T.D.).
2 S.C. 1973-74, c. 46, rep. by S.C. 1985, c. 20, s. 46.
Court are being issued simultaneously with these
reasons.' Suffice it to say for this appeal, the
parties were ordered to make production of docu
ments to each other. In April, 1985, Mr. Justice
Dubé ordered that any objection to production
based upon the provisions of the Canada Evidence
Act should be made before May 14, 1985. On that
date, Mr. G. F. Osbaldeston, the then Clerk of the
Privy Council, objected to the disclosure of eight
specific documents and the information contained
therein, by certifying that each of the documents is
a confidence of the Queen's Privy Council for
Canada. 4 Two years later an application was made
by the respondents to strike out the Osbaldeston
certificate and Mr. Justice Teitelbaum made the
order giving rise to this appeal.
The memorandum of fact and law filed by the
respondents and served on the appellant on Octo-
ber 18, 1989 contended that section 36.3 of the
Canada Evidence Act is invalid as it infringes
sections 7 and 15 of the Canadian Charter of
Rights and Freedoms [being Part I of the Consti
tution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44]] and paragraph 1(a) of the Canadian Bill
of Rights [R.S.C., 1985, Appendix III]. These
issues were not raised before Mr. Justice Teitel-
baum and the Court made an order, dated Novem-
ber 30, 1989, in the special circumstances of this
case, agreeing to hear argument on the invalidity
of section 36.3. 5
Consequently there are now two major questions
before us on section 36.3: one involving whether
the Trial Judge correctly interpreted section 36.3
in making his order, and the other going to the
3 See Court File No. A-257-87 and Court File No. A-307-89.
° See Certificate of G. F. Osbaldeston, dated May 14, 1985,
Appeal Book, Vol. III, p. 446.
5 The order also permitted the introduction by the appellant
of the affidavit of Mr. Ward Elcock, dated November 24, 1989,
together with cross-examination thereon, as well as the Affida
vit of Mr. Alan D. Reid, in reply thereto. Such affidavits and
transcript of cross-examination are found in volumes 1, 2, and 3
of the supplementary case on appeal.
alleged invalidity of section 36.3. 6
The Interpretation of Section 36.3 of the Canada
Evidence Act
Section 36.3 of the Canada Evidence Act pro
vides as follows:
36.3 (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 restrict
ing 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;
(e) an agendum of Council or a record recording delibera
tions or decisions of Council;
(d) a record used for or reflecting communications or discus
sions 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 para
graph (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
Council for Canada, Cabinet and committees of Cabinet.
6 It should be noted that the invalidity arguments of the
respondents are more properly raised by way of cross-appeal
rather than by arguments against allowing the appeal in that
they seek a reversal of Mr. Justice Teitelbaum's order through
a holding that section 36.3 is invalid by section 52 of the
Constitution Act, 1982 [Schedule B, Canada Act 1982, 1982, c.
11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] or by specific
provisions of the Canadian Bill of Rights. Respondents are in
effect arguing firstly that the order of Teitelbà um, J. was
correct which affirms the validity of section 36.3 but in their
second argument, by arguing the invalidity of the section they
are in effect appealing the decision below in so far as it
affirmed the validity of the section. Hence cross-appeal is more
appropriate.
(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."
The following is the Certificate of G. F.
Osbaldeston, dated May 14, 1985, and Schedule
"A" thereto: 7
CERTIFICATE
I, the undersigned, Gordon Francis Osbaldeston, residing in the
City of Nepean, in the Province of Ontario, do certify and say:
1. I am the Clerk of the Queen's Privy Council for Canada and
Secretary to the Cabinet.
2. The Attorney-General of Canada, on behalf of the Minister
of Industry, Trade and Commerce has been ordered by this
Honourable Court on April 23, 1985 to provide various docu
ments to the Respondents.
3. I have personally examined and carefully considered the
documents listed in Schedule "A" hereto.
4. I certify to this Honourable Court pursuant to subsection
36.3(1) of the Canada Evidence Act, R.S.C. 1970, c. E-10, as
amended by S.C. 1980-81-82-83, c. 111, that all of the docu
ments referred to in the said Schedule "A" are confidences of
the Queen's Privy Council for Canada as they constitute infor
mation contained in:
— memoranda the purpose of which is to present proposals or
recommendations to Council within the meaning of para
graph 36.3(2)(a) of the said Act;
— records 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 gov
ernment policy within the meaning of paragraph 36.3(2)(d)
of the Said [sic] Act; or
— records the purpose of which is to brief Ministers of the
Crown in relation to matters that are brought before, or are
supposed to be brought before, Council within the meaning
of paragraph 36.3(2)(e) of the Act;
and I object to the disclosure of these documents and the
information contained therein.
5. I further certify to this Honourable Court that paragraph
36.3(4) of the Canada Evidence Act does not apply in respect
of any of these documents as none of the documents have been
in existence for more than twenty years and none of the
documents is a discussion paper as described in paragraph
36.3(2)(b) of the Canada Evidence Act.
7 Supra, note 4.
Dated at OTTAWA, in the Province of Ontario, this 14th
day of May, 1985.
"Gordon Francis Osbaldeston"
Gordon Francis Osbaldeston
Clerk of the Queen's Privy
Council for Canada and
Secretary to the Cabinet
SCHEDULE "A" TO THE CERTIFICATE
OF GORDON FRANCIS OSBALDESTON
DATED THE 14TH DAY OF MAY, 1985
1. Document #1 constitutes information contained in a memo
randum to Council the purpose of which was to present
proposals or recommendations to Council and therefore is
within paragraph 36.3(2)(a) of the Canada Evidence Act.
2. Document #2 constitutes information contained in a draft
memorandum to Council the purpose of which was to
present proposals or recommendations to Council and there
fore is within paragraph 36.3(2)(a) of the Canada Evidence
Act.
3. Document #3 constitutes information contained in a draft
memorandum to Council the purpose of which was to
present proposals or recommendations to Council and there
fore is within paragraph 36.3(2)(a) of the Canada Evidence
Act.
4. Document #4 constitutes information contained in a memo
randum to Council the purpose of which was to present
proposals or recommendations to Council and therefore is
within paragraph 36.3(2)(a) of the Canada Evidence Act.
5. Document #5 constitutes information contained in a draft
memorandum to Council the purpose of which was to
present proposals or recommendations to Council and there
fore is within paragraph 36.3(2)(a) of the Canada Evidence
Act.
6. Document #6 constitutes information contained in a memo
randum to Council the purpose of which was to present
proposals or recommendations to Council and is therefore
within paragraph 36.3(2)(a) of the Canada Evidence Act.
7. Document #7 constitutes information contained in a record
used for or reflecting communications or discussions be
tween Ministers of the Crown on matters relating to the
making of government decisions or the formulation of gov
ernment policy [and] is therefore within paragraph
36.3(2)(d) of the Canada Evidence Act.
8. Document #8 constitutes information contained in a record
the purpose of which was to brief Ministers of the Crown in
relation to matters that were brought before Council and is
therefore within paragraph 36.3(2)(e) of the Canada Evi
dence Act.
The respondents requested Mr. Justice Teitel-
baum to strike the certificate which he refused to
do relying on the decision of Strayer J. in Smith,
Kline & French Laboratories Limited v. Attorney
General of Canada. 8 In that case Strayer J. speci
fied what a section 36.3 certificate should contain'
and Teitelbaum J. appears at first to have accept
ed that approach.
However, before him and us, the respondents
submitted that the certificate did not properly
assert a claim for privilege by simply repeating
therein the wording of paragraph 36.3(2) as it does
not provide a basis upon which the Court can
determine, from the face of the certificate, wheth
er the document belongs to the categories of docu
ments described in paragraph 36.3(2). The Trial
Judge agreed with this submission, saying:
A Certificate filed under this section of the Canada Evidence
Act by the Clerk of the Privy Council must state more than
merely stating that "Document #1 constitutes information ...",
"Document #2 constitutes information ..." and so on for all of
the documents listed in Schedule "A" attached to the
certificate.
The certificate must provide sufficient information to enable
a court to determine whether the information described in the
certificate is properly categorized. The document must and
should be named so that the court would know what type of
document is being referred to. Describing a document by giving
it a number, as is done in the present instance is insufficient to
determine if the document should be a privileged one. It should
state the date of the document, from whom and to whom it was
sent and its subject-matter. [Emphasis added.] 10
The appellant argues that the above paragraphs
reveal error in that it is not open to the Court to
require the disclosure mandated by the Trial
Judge. I agree.
8 [1983] 1 F.C. 917 (T.D.). On the question of striking out
the certificate Strayer J. said this [at p. 922]:
It should first be noted that this is a request for "striking
out" the certificate. I do not believe that this Court has
authority to "strike out" such a certificate. Even if he were
properly impleaded, I do not think that the function of the
Clerk in issuing such a certificate is of such a nature as to be
amenable to review by any of the prerogative writs. While a
declaration might be an appropriate means for a judicial
examination of the certificate, the present proceedings are
not in the appropriate form for a declaration. Counsel for the
plaintiffs was unable to refer me to any specific authority
otherwise by which the Court could strike out the certificate.
9 See Id., at pp. 931-933.
10 Reasons for order, Appeal Book, Vol. III, at pp. 179-180.
Section 36.3 relates only to an objection to
disclosing information that is a "confidence of the
Queen's Privy Council for Canada". Unlike sec
tions 36.1 and 36.2 of the Canada Evidence Act,
which reflect the balancing of public interest in
non-disclosure and the public interest in the
administration of justice for which disclosure is
sought (as seen in Conway v. Rimmer" which
allowed a court to examine a document subject to
a claim of Crown privilege to ascertain whether it
should be disclosed), section 36.3 prevents a court
from examining the document that represents a
confidence of the Queen's Privy Council. ' 2 The
absolute language of section 36.3 and its predeces
sor, subsection 41(2) of the Federal Court Act, has
been recognized by this Court and the Supreme
Court of Canada. ' 3
It appears clear that Parliament intended by
passing section 36.3 that the determination of
whether any information constitutes a confidence
of the Queen's Privy Council is to be made by a
Minister of the Crown or the Clerk of the Privy
Council. Subject only to compliance with the
express requirements of the section, the decision of
" [1968] A.C. 910 (H.L.).
12 Subsection 41(1) of the Federal Court Act, R.S.C. 1970
(2nd supp.), c. 10 seemed to follow this balancing approach of
Conway v. Rimmer whereas subsection 41(2) of that Act
seemed to follow the restrictive approach in favour of a wider
Crown privilege as seen in Duncan v. Cammell, Laird & Co.
Ld., [1942] A.C. 624 (H.L.) by denying court examination of
the document claimed to be subject to Crown privilege. In
1982, section 41 of the Federal Court Act was repealed and
replaced by sections 36.1, 36.2, and 36.3 of the Canada Evi
dence Act. As noted by Strayer J. in Smith, Kline & French,
supra, note 8 at p. 927, section 36.3 follows the Cammell,
Laird approach and unlike subsection 41(2) of the Federal
Court Act, gives a partial definition of a confidence.
13 Landreville v. The Queen, [1977] 1 F.C. 419 (T.D.), at pp.
422-423; Commission des droits de la personne v. Attorney
General of Canada et al., [1982] 1 S.C.R. 215; Smith, Kline &
French Laboratories Limited v. Attorney General of Canada,
supra, note 8; Canada (Auditor General) v. Canada (Minister
of Energy, Mines and Resources), [1987] 1 F.C. 406 (C.A.), at
pp. 425-426; appeal to S.C.C. dismissed [1987] 1 S.C.R. v.
the Minister or the Clerk, as certified in writing by
him or her, is not subject to review by any court.
The court cannot go behind the certificate and
examine the documents as it can under sections
36.1 and 36.2 of the Canada Evidence Act. How
ever, it is open to a court to see whether the
certificate on its face asserts a privilege within the
statutory limitations on claims for privilege by the
executive.
As mentioned above, Mr. Justice Teitelbaum
held that a certificate that simply repeats the
wording of subsection 36.3(2) does not provide a
basis for the Court to determine whether the docu
ments belong to the categories described in subsec
tion 36.3(2). More information is required: it
should state the date of the document, from whom
and to whom it was sent and its subject-matter.
Counsel for the appellant suggests the provision
of such information which the learned Judge has
required would of necessity describe, at least in
part, the very information which Parliament has
said need not be disclosed. I agree that that could
be the case in certain circumstances but this need
not be pursued because in my view the disclosure
required by the order of the Trial Judge is simply
not supported by the language of section 36.3.
Strayer J. was correct in Smith, Kline to hold
that a certificate should clearly assert that the
document meets the requirements spelled out in
the paragraphs of subsection 36.3(2). He said:
For example, where [the certificate] invokes paragraph (a) [of
subsection 36.3(2)] it should indicate that the memorandum to
Council was for the purpose of presenting proposals or recom
mendations. Paragraph (b) is not resorted to, and where (e) is
invoked this appears to be done properly. Paragraph (d) in my
view is not properly invoked. Typical of its use is item 22 which
reads as follows:
22. Document #22 is a copy of a letter between Ministers of
the Crown and therefore is within paragraph 36.3(2)(d) of
the Canada Evidence Act.
In the statute paragraph (d) is carefully circumscribed to cover
only "communications or discussions between Ministers of the
Crown on matters relating to the making of government deci
sions or the formulation of government policy". It does not
cover communications concerning social events, personal busi
ness, etc. The certificate simply asserts that the document in
question is a letter passing between Ministers and this might or
might not describe a document to which the privilege can
legally attach. Therefore a proper invocation of paragraph (d)
should assert that the subject-matter relates to the making of
government decisions or the formulation of government
policy. 14
He continued:
The foregoing requirements for a certificate which I have
postulated may appear to some to be unduly formalistic. As has
been argued by the Crown in the present case, there is no
evidence before me that the documents listed in the certificate
do not meet the criteria of the statute even though they are not
adequately described as meeting all the requirements. Never
theless, consistently with the changes which the Parliament of
Canada has made in the law in order to impose some criteria
and limitations on the executive in its assertion of privilege by
means of a non-reviewable certificate, litigants and the courts
are entitled at least to the assurance that the Clerk of the Privy
Council has directed his mind to those criteria and limitations.
The certificate in its present form, because it does not in all
respects indicate that the Clerk has so directed his mind, is
defective. 15
Strayer J. found the certificate in Smith, Kline
to be defective because it in effect did not track
the language of subsection 36.3(2). Requiring it to
do so admittedly may be formalistic, but, as he
notes, litigants and the courts are entitled "at least
to the assurance that the Clerk of the Privy Coun
cil has directed his mind to those criteria and
limitations". Therefore tracking the language of
the subsection is not an empty exercise. It is what
is required and I see no reason why the words
should not be so interpreted. 16 There simply is no
authority in the section to support requiring the
additional information that the Trial Judge
requested in the order he made.
14 Supra, note 8, at p. 931.
15 ld., at p.933.
16 As was correctly said by Strayer J. in Smith, Kline, at
p. 931.
Where it [the certificate] asserts that a document is a
confidence on the basis of definitions in the various para
graphs of subsection 36.3(2) it should clearly assert that the
document meets the requirements spelled out in those para
graphs. [Emphasis added.]
Consequently, I find the Trial Judge erred and
on this point would allow the appeal subject to the
invalidity points which I shall now discuss.
The Invalidity of Section 36.3 of the Canada
Evidence Act
Under this argument, the respondents contend
that section 36.3 is of no force or effect because it
infringes sections 7 and 15 of the Canadian Chart
er of Rights and Freedoms and paragraphs 1(a)
and 2(e) of the Canadian Bill of Rights. The
respondents also argue that paragraph 1 of the
Charter does not apply to remedy the Charter
breaches. Because of the conclusion I arrive at, it
will not be necessary for me to discuss that section.
(1) Section 7 of the Charter
Respondents argue that section 363 infringes
section 7 of the Charter in that the section
deprives the respondents of their security of the
person without compliance with fundamental jus
tice. Section 7 of the Charter provides:
7. Everyone has the right to life, liberty and security of the
person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.
In my view, the respondents, as corporations,
cannot take advantage of section 7 of the Charter
as it is limited to human beings. I need only refer
to a recent decision of the Supreme Court of
Canada on this point in which Mr. Justice Cory,
who wrote the reasons for judgment, said:
There can now be no doubt that a corporation cannot avail
itself of the protection offered by s. 7 of the Charter. In Irwin
Toy Ltd. v. Québec (Attorney General), [1989] 1 S.C.R. 927,
the majority of this Court held that a corporation cannot be
deprived of life, liberty and security of the person and cannot
therefore avail itself of the protection offered by s. 7 of the
Charter. At page 1004 it was stated:
... it appears to us that [s. 7] was intended to confer
protection on a singularly human level. A plain, common
sense reading of the phrase "Everyone has the right to life,
liberty and security of the person" serves to underline the
human element involved; only human beings can enjoy these
rights. "Everyone" then, must be read in light of the rest of
the section and defined to exclude corporations and other
artificial entities incapable of enjoying life, liberty or security
of the person, and include only human beings.
It is true that there is an exception to this general principle
that was established in R. v. Big M Drug Mart, supra, where it
was held that "[a]ny accused, whether corporate or individual,
may defend a criminal charge by arguing that the law under
which the charge is brought is constitutionally invalid" (pp.
313-14). Here no penal proceedings are pending and the excep
tion is obviously not applicable."
Respondents also argued that the exception in
R. v. Big M Drug Mart Ltd. et al." applied herein
because "the thrust" of FIRA is directed at the
individuals controlling the respondents and the
remedy of the section 20 application under FIRA
focuses on these individuals. Moreover, respond
ents argue that sections 24 and 27 of FIRA con
template penal proceedings against the corpora
tions and their officers, directors and agents. But I
do not find these arguments convincing to bring
respondents within the exception of Big M Drug
Mart because the main proceeding under section
20 of FIRA is not penal, it is a proceeding to
implement a decision of the Governor in Council
annulling the transfer of shares, which in the
context of FIRA would appear to be a decision
reflecting national economic policy. Therefore the
section 7 of the Charter argument fails for lack of
standing.
(2) Section 15 of the Charter
The argument of the respondents under section
15 19 of the Charter is to the effect that section
36.3 is discriminatory "both in terms of burden of
17 Dywidag Systems International, Canada v. Zutphen
Brothers Construction Ld., [1990] 1 S.C.R. 705, at p. 709.
18 [1985] 1 S.C.R. 295.
19 Section 15 of the Charter reads as folllows:
15. (1) Every individual is equal before and under the law
and has the right to the equal protection and equal benefit of
the law without discrimination and, in particular, without
discrimination based on race, national or ethnic origin,
colour, religion, sex, age or mental or physical disability.
(2) Subsection (1) does not preclude any law, program or
activity that has as its object the amelioration of conditions
of disadvantaged individuals or groups including those that
are disadvantaged because of race, national or ethnic origin,
colour, religion, sex, age or mental or physical disability.
proof and in the result, between private litigants or
between a private litigant and the Crown (where it
is a party), without justification. To this extent,
the resulting discrimination infringes the other
party's right to equality before and under the law
and the right to equal protection and equal benefit
of the law ...". 20
As I understand the argument, respondents
appear to say section 15 is contravened because
their right of equality before and under the law
thereunder is infringed by section 36.3 of the
Canada Evidence Act which gives to the Crown, as
a party litigant, a right to suppress evidence—
confidences of the Queen's Privy Council—not
otherwise available to others, including the
respondents.
Again, I think that the respondents as corpora
tions cannot avail themselves of the protection of
section 15. As was said by Stone J.A. in National
Anti-Poverty Organization v. Canada (Attorney
General): 21
In my view, the fact (as is argued) that NAPO is a non-profit
corporation does not render it an "individual" for purposes of
subsection 15(1). Nor do I think that NAPO is assisted by the
fact that the Supreme Court in R. v. Big M Drug Mart Ltd. et
al., [1985] 1 S.C.R. 295 (per Dickson J., at page 313) con
strued the word "anyone" in section 24(1) of the Charter as
including "individuals (whether real persons or artificial ones
such as corporations)", when the word employed in subsection
15(1) is "individual" rather than "anyone".
However, even if a corporation is entitled to
standing to assert section 15 protection, I can see
no contravention of section 15 according to the
tests laid down by the Supreme Court of Canada
20 Respondent's factum, pp. 23-24.
21 [ 1989] 3 F.C. 684, at pp. 703-704 leave to appeal refused
on November 23, 1989 [[1989] 2 S.C.R. ix]. See also Smith,
Kline & French Laboratories Ltd. v. Canada (Attorney Gener
al), [1987] 2 F.C. 359 (C.A.) per Hugessen J.A. who noted
that the possible problem of corporate plaintiffs invoking rights
under section 15 that can only be enjoyed by individuals was
avoided by the individual plaintiffs being found to assert section
15 protection. Id., at p. 364.
in Andrews v. Law Society of British Columbia. 22
In that case, Mr. Justice McIntyre stated that the
purpose of section 15 is to ensure equality in the
formulation and application of the law. For a
section 15 contravention, one must demonstrate
not only unequal treatment before or under the
law or that the law has a differential impact in the
protection or benefit accorded by law, but also that
the legislative impact of the law is discriminatory.
With respect to unequal treatment, I find the
remarks of Mr. Justice Cory in Rudolph Wolff &
Co. v. Canada 23 particularly helpful. In that case,
it was argued that subsections 17(1) and (2) of the
Federal Court Act and subsection 7(1) of the
Crown Liability Act conferring exclusive jurisdic
tion on the Federal Court of Canada contravened
subsection 15 (1) of the Charter. After citing the
approach of McIntyre J. in Andrews, Mr. Justice
Cory said:
With respect to the issue of whether the appellants have
received unequal treatment, it must be apparent that the Crown
cannot be equated with an individual. The Crown represents
the State. It constitutes the means by which the federal aspect
of our Canadian society functions. It must represent the inter
ests of all members of Canadian society in court claimsbrought
against the Crown in right of Canada. The interests and
obligations of the Crown are vastly different from those of
private litigants making claims against the Federal Govern
ment.
Henry J., in my opinion, properly applied the decision in R.
v. Stoddart, supra. I agree with the words of Tarnopolsky J.A.,
speaking for the court in that case, at pp. 362-63 where he
stated:
The Crown is not an "individual" with whom a comparison
can be made to determine a s. 15(1) violation.
... the Crown Attorney does not participate . in a criminal
trial as an "individual". He participates as a representative
of the Crown, which in turn represents the state, i.e. organ
ized society. It will be recalled that the Oxford English
Dictionary defines an "individual" as "a single human
being", in contra-distinction to "society". Therefore, the
accused, as an "individual", cannot be compared with Crown
counsel, as representative of our organized society, for the
purpose of a s. 15(1) analysis.
zz [ 1989 ] 1 S.C.R. 143.
23 [1990] 1 S.C.R. 695.
This principle is equally applicable to the facts of this case
and is sufficient to dispose of the issue. In the circumstances of
the case at bar, the Crown is simply not an individual with
whom a comparison can be made to determine whether a s.
15 (1) violation has occurred. 24
In the case at bar, the Crown in section 36.3 of
the Canada Evidence Act similarly is not an
individual with whom a comparison can be made
to determine where a section 15 violation has
occurred.
Moreover I do not find any discrimination, as
defined in Andrews, by the alleged impact of
section 36.3 of the Canada Evidence Act on the
respondents. Again, I refer to the words of Mr.
Justice Cory in Rudolph Wolff:
Nor did the appellants demonstrate that if any inequality
existed it was discriminatory. The impugned legislation grant
ing the Federal Court exclusive jurisdiction over claims against
the Crown in right of Canada does not distinguish between
classes of individuals on the basis of any of the grounds
enumerated in s. 15(1) nor on any analogous grounds. Certain
ly, it cannot be said that individuals claiming relief against the
Federal Court are in the words of Wilson J. in R. v. Turpin,
[1989] 1 S.C.R. 1296, at p. 1333, "a discrete and insular
minority" or "a disadvantaged group in Canadian society
within the contemplation of s. 15". Rather, they are a disparate
group with the sole common interest of seeking to bring a claim
against the Crown before a court. 25
Section 36.3 gives the Crown a privilege against
discovery with respect to certain information and
in doing so does not distinguish between classes of
individuals on the basis of any enumerated
grounds in subsection 15(1) nor on any analogous
grounds. In short, the section 15 argument also
fails.
(3) Paragraph 1(a) of the Canadian Bill of
Rights
The respondents contend that section 36.3 is
inconsistent with paragraph 1(a) of the Canadian
Bill of Rights, which provides:
1. It is hereby recognized and declared that in Canada there
have existed and shall continue to exist without discrimination
by reason of race, national origin, colour, religion or sex, the
following human rights and fundamental freedoms, namely,
24 I d. , at p. 701.
25 Id., at p. 702.
(a) the right of the individual to life, liberty, security of the
person and enjoyment of property, and the right not to be
deprived thereof except by due process of law;
The respondents argue that the Government of
Canada's actions in disallowing the transfer of
shares and the use of section 36.3 amount to a
deprivation of the enjoyment of property without
due process.
However, this argument again fails at the
threshold. This Court has previously held that
paragraph 1(a) of the Canadian Bill of Rights
applies only to individuals which does not include
bodies corporate. 26 Therefore the respondents have
no claim under that paragraph.
(4) Paragraph 2(e) of the Canadian Bill of Rights
Paragraph 2(e) of the Canadian Bill of Rights
provides as follows:
2. Every law of Canada shall, unless it is expressly declared
by an Act of the Parliament of Canada that it shall operate
notwithstanding the Canadian Bill of Rights, be so construed
and applied as not to abrogate, abridge or infringe or to
authorize the abrogation, abridgment or infringement of any of
the rights or freedoms herein recognized and declared, and in
particular, no law of Canada shall be construed or applied so as
to
(e) deprive a person of the right to a fair hearing in accord
ance with the principles of fundamental justice for the deter
mination of his rights and obligations;
As the provision refers to "persons", respondents
argue that they fall within the ambit of that
paragraph and I assume they do.
However, before dealing with the paragraph
2(e) argument more generally, I wish to discuss a
preliminary point which goes to the breadth of
respondents' submissions on this argument. The
respondents submit that they are being denied a
fair hearing in accordance with the principles of
fundamental justice for the determination of their
rights and obligations under FIRA because of: the
decision made by Cabinet to disallow the transfer
26 New Brunswick Broadcasting Co., Limited v. Canadian
Radio-television and Telecommunications Commission,
[1984] 2 F.C. 410 (C.A.) at pp. 427-428 (per Thurlow C.J.);
and Smith, Kline & French Laboratories Ltd. v. Canada
(Attorney General), supra, note 21.
of shares from respondent Canadian Transit Com
pany to the respondents Central Cartage Company
and Detroit International Bridge Company, the
manner in which the decision was reached, the
resort to section 20 of FIRA to enforce the Cabi
net decision, and ultimately because of the poten
tial criminal liability under sections 24 and 27 of
FIRA. The invocation by the appellant of section
36.3 of the Canada Evidence Act in this context
has resulted in a denial of the respondents' rights
to a fair hearing within the meaning of paragraph
2(e) of the Canadian Bill of Rights.
In making this argument, the respondents are
lumping a great many issues together and I believe
improperly so. The specific issue before us is an
argument that section 36.3 of the Canada Evi
dence Act infringes paragraph 2(e) of the Canadi-
an Bill of Rights in the context of the proceedings
in question. Those proceedings are described under
section 20 of FIRA, the relevant portions of which
provided as follows:
20. (1) Where a non-eligible person or group of persons any
member of which is a non-eligible person has made an actual
investment in circumstances in which
(b) the Governor in Council has, by order, refused to allow
the investment ...
a superior court, on application on behalf of the Minister, may
make such order as, in its opinion, is required in the circum
stances, to the end that the investment shall be rendered
nugatory not later than the expiry of such period of time as the
court considers necessary to allow in order to avoid or reduce,
to the greatest possible extent consistent with the attainment of
that end, any undue hardship to any person who was not
involved in the investment knowing it to be subject to be
rendered nugatory under this Act.
I agree with Strayer J. when he made the fol
lowing comments about a section 20 proceeding:
It will be noted that Parliament specified that such a proceed
ing was to be by way of application and Rule 319 of the
Federal Court Rules states that "Any application to the Court
shall be made by motion and initiated by notice of motion ...."
Two other judges of the Trial Division (Cattanach J., July 12,
1983; Walsh J., April 15, 1985) have declined to order a trial of
the issue or measures normally associated with the conduct of
an action. I have made several orders attempting to assist the
parties in achieving a proper definition of the issues and in
trying to assure them, particularly the respondents, a reason
able opportunity to acquire and submit relevant evidence.
It is reasonably clear from subsection 20(1), quoted above,
that Parliament deliberately decided that the proceeding to
obtain a court order rendering nugatory an investment already
disallowed by the Governor in Council should be summary in
nature. The word "application" clearly connotes this. In such a
summary procedure there are no pleadings and proof is to be by
affidavit. This seems not inappropriate in circumstances where
the substantive decision to disallow the investment has already
been made by the Governor in Council, and the purpose of
recourse to the Court is simply to enforce that decision.
... it is important to keep in mind that the role of the Court
under subsection 20(1) of the Foreign Investment Review Act is
to give legal effect to a decision of the Governor in Council
disallowing the acquisition. The Court is to
make such order as, in its opinion, is required in the circum
stances, to the end that the investment shall be rendered
nugatory...
The principal function of the Court, then, is to give appropriate
form to an enforcement measure which will do what is required
to render the investment nugatory without doing more, at the
same time having regard to the interests of innocent third
parties. It is not the role of the Court on such an application by
the Attorney General to hear an appeal from the Governor in
Council as to the merits of his decision to disallow the invest
ment. This is a nicety which the respondents do not always
seem to appreciate. 27
As acknowledged by Strayer J., respondents are
attacking the validity of the Cabinet decision
because they want to establish it was made without
jurisdiction. But the section 20 proceeding is sum
mary in nature, is aimed at enforcing a decision of
the Cabinet, with proof by affidavit only, and does
not involve the trial of an action. The attempt by
the respondents to broaden their invalidity argu
ments by linking them to the merits of the Cabinet
decision and potential criminal liability is wrong.
Moreover, it is also inappropriate for respondents
to argue in this appeal that section 20 is itself
invalid as I do not believe the leave, given by the
Court to attack the validity of section 36.3 of the
Canada Evidence Act, carried with it a licence to
argue the invalidity of section 20.
27 Reasons of order of Strayer J., Court File A-307-89, vol. V
of the Appeal Book, pp. 3-5 and 6. Strayer J. was confirmed by
this Court in reasons for judgment issued simultaneously
herewith.
However, what is appropriately raised by
respondents is their argument that section 36.3 of
the Canada Evidence Act violates paragraph 2(e)
of the Canadian Bill of Rights in the context of
the proceeding contemplated by section 20 of
FIRA. Simply put, respondents submit that the
right to a fair hearing in accordance with funda
mental justice is enshrined in paragraph 2(e) and
fundamental justice includes the right to state
one's case adequately. 28 As section 36.3 of the
Canada Evidence Act prevents the adequate state
ment of their case, respondents argue it violates
paragraph 2(e) of the Canadian Bill of Rights and
should not apply. I do not agree.
The fair hearing guaranteed in paragraph 2(e)
of the Canadian Bill of Rights is not a frozen
concept that remains static. A court in interpreting
the concept, should be mindful of its origin and
evolution and of the specific context in which it is
being raised. In other words, the guarantee of a
fair hearing in paragraph 2(e) should be given a
meaning that recognizes not only the interpreta
tion and evolution of the term over time but also
the particular circumstances involved. 29
28 Singh et al. v. Minister of Employment and Immigration,
[1985] 1 S.C.R. 177, at p. 213, citing Duke v. The Queen,
[1972] S.C.R. 917, at p. 923.
29 In this respect, I agree with the analysis of Professor Peter
Hogg when he concludes that, although the Canadian Bill of
Rights does not contain a limitation clause comparable to
section one of the Charter, courts have not interpreted the
guarantees of the Canadian Bill of Rights as absolute. See
Hogg, "A Comparison of the Canadian Charter of Rights and
Freedoms with the Canadian Bill of Rights", in Beaudoin and
Ratushny, The Canadian Charter of Rights and Freedoms, 1
at p. 8 (2nd ed. 1989).
Professor Hogg states:
Thus a guarantee of "equality before the law" or "equal
protection of the laws" must be qualified to accommodate
laws which treat special groups in a special way for legiti
mate reasons, and a guarantee of "freedom of speech" must
be qualified to accommodate laws against sedition, obscenity,
fraud, official secrecy, defamation, deceptive advertising and
the like. The position without a limitation clause is therefore
not very different from the position with a limitation clause.
However, an explicit limitation clause does instruct the
courts, albeit vaguely, as to the standards to be employed in
(Continued on next page)
In addition, it should be noted paragraph 2(e) of
the Canadian Bill of Rights guarantees a fair
hearing in accordance with the principles of funda
mental justice. As was stated by Lamer J. in Re
B.C. Motor Vehicle Act, 30 the words "principles of
fundamental justice" qualify the "right to a fair
hearing" and operate differently from section 7 of
the Charter because in that section they qualify
much more fundamental rights, namely, the "right
to life, liberty and security of the person". Conse
quently paragraph 2(e) is much narrower in scope
than section 7 of the Charter in that the former
deals solely with procedural fairness.
There is no doubt that procedural fairness gen
erally implies the right to state one's case
adequately. 3' This right is part of the broader rule
commonly expressed by the Latin expression of
audi alteram partem—to hear the other side.
But it has been well recognized that there can be
circumstances where the audi alteram partem
rules can be qualified, and these qualifications
have developed over time both by the common law
and by statute. 32 Many questions of privilege such
as solicitor-client, priest-penitent, or rules on hear
say evidence can operate to cut down on the ability
to state one's case by denying admissibility into
evidence even though relevance may be estab
lished. The issue of Crown privilege attaching to
Cabinet confidences is firmly established as one of
(Continued from previous page)
determining whether a law transgresses a guaranteed civil
liberty. In the absence of a limitation clause, the courts have
to invent the applicable standards, a task that Canadian
courts, in interpreting the Canadian Bill of Rights, did not
perform very successfully. [Footnotes omitted.] Id., p. 8.
30 [1985] 2 S.C.R. 486, at p. 511.
31 See Fauteux C.J. in Duke v. The Queen, supra, note 28.
32 As noted by La Forest J., relying on Re B.C. Motor
Vehicle Act, supra, note 30, it is proper to resort to the
common law and legislative practice to interpret Charter rights,
see R. v. Beare, [1988] 2 S.C.R. 387, at p. 406.
these exceptions" and I believe it has not been
ousted by the wording of paragraph 2(e) of the
Canadian Bill of Rights.
The exclusion of Cabinet confidences, which is
behind the provisions of section 36.3, is principally
aimed at the protection of Cabinet candour in its
discussions and Cabinet solidarity, and comes well
within the exceptions to stating one's case that
have been recognized. As stated in de Smith,
Judicial Review of Administrative Action, the
audi alteram partem rule may be modified by
legislation for the protection of particular aspects
of the public interest such as information supplied
in confidence for the government or the discharge
of public functions.'"
Accordingly, the common law and statutory evo
lution of protection against discovery for Cabinet
confidences should not be lightly discarded. In this
respect, one cannot ignore the special status the
Crown enjoys which was described by Mr. Justice
Cory as being different and apart from others in
that it represents the interests of all members of
Canadian society."
I also take some reinforcement in my conclusion
that the invocation of a section 36.3 certificate
does not violate paragraph 2(e) of the Canadian
Bill of Rights when the limited purpose and scope
of section 20 of FIRA is recalled. As stated earlier,
that section's purpose is limited to the making in a
prescribed manner of a court order implementing a
decision of the Cabinet. I fail to see how, given the
33 See authorities cited supra note 13. See also the thorough
review of Crown privilege relating to Cabinet documents under
the common law by La Forest J. in Carey v. Ontario, [1986] 2
S.C.R. 637.
34 (4th ed., J. M. Evans, editor, pp. 189-190).
35 Rudolph Wolff & Co. v. Canada, supra, notes 23, 24.
Cory J. stated, however, it was not necessary for him to
consider the point that the Crown can never be compared with
individuals under subsection 15(1) of the Charter in the context
of any statute governing the relationship between the Crown
and the subject in civil proceedings. He said that there could be
circumstances in which the Crown's activities are indistinguish
able from those of any other litigant engaged in commercial
activity but that was for another day. At pp. 701-702.
limited scope and purpose of the section 20 pro
ceeding, the operation of a section 36.3 certificate
infringes the respondents' guarantee of a fair hear
ing under paragraph 2(e). Especially so, when, at
the main hearing under section 20, respondents
will be able to advance any argument they think
relevant including asking the Court to draw any
inference which arises from the lack of documents
requested by the respondents and protected by the
section 36.3 certificate.
Conclusion
For the foregoing reasons, the appeal will be
allowed with costs in the cause and the order of
Teitelbaum J. rendered on September 1, 1988 is
set aside, and the respondents' motion to strike the
certificate is dismissed.
URIE J.A.: I agree.
MARCEAU J.A.: 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.