Judgments

Decision Information

Canadian Assn. of Regulated Importers v. Canada (Attorney General) (C.A.)

Collection	Judgments
Date	1991-12-20
Report citation	[1992] 2 F.C. 130
File numbers	A-611-91
Subjects	Constitutional Law Crown Practice

Decision Content

A-6î11-91

The Canadian Association of Regulated Importers, Parkview Poultry Ltd., Bertmar Poultry Ltd., George Tsisenpoulos, Henry Neufeld, Zigmond Tibay, Henry Kikkert, Eva Szasz Peterffy, Paul Dinga, C & A Poultry Ltd., Zoltan Varga, Jake Drost, George Drost, Joe Drost, Melican Farms Ltd., Joe Speck, Marinus Kikkert, Checkerboard Hatchery, Brampton Chick Hatching Co. Ltd, Zoltan Koesis, Roe Poultry Ltd., Gabe Koesis, Henry Fois

(Appellants) v.

Attorney General of Canada, Canadian Broiler Hatching Egg Marketing Agency, Canadian Hatchery Federation (Respondents)

INDEXED AS: CANADIAN ASSN. OF REGULATED IMPORTERS V. CANADA ATTORNEY GENERAL) (CA.)

Court of Appeal, Hugessen, MacGuigan and Linden, JJ.A.—Toronto, November 14; Ottawa, December 20, 1991.

Practice — Discovery — Production of documents Appeal from denial of motion for production of documents — Meaning and extent of privilege from disclosure of confidence of Queen's Privy Council for Canada under Canada Evidence Act, s. 39 — Documents related to ministerial discretion under Export and Import Permits Act — Counsel for respondent undertaking to produce document, then reneging — Certificate issued by Clerk of Privy Council under s. 39 that documents confidences of the Queen's Privy Council — Documents quali fying for s. 39 absolute privilege — Cases cited by appellants distinguished as not involving statutory privilege — Statutory privilege taking priority over undertaking by counsel to pro duce document — Judicial discretion to relieve solicitor from personal undertaking based on mistake of fact.

Crown — Prerogatives — Motion for production of memo randum and other documents referred to by designated Minis ter in making quota decision — Documents found by Motions Judge entitled to benefit of absolute privilege from disclosure under Canada Evidence Act, s. 39 — Absolute privilege under s. 39 and qualified privilege under ss. 37 and 38 distinguished — Only information concerning Cabinet in collegial sense

qualifying for absolute privilege — As quota decision involving two ministers and documents sent to both, documents qualified for s. 39 privilege.

Constitutional law — Charter of Rights — Life, liberty and security — Equality rights — Majority of appellants individu als, not corporations, therefore having standing to invoke Charter, s. 7 — Lamer J.'s theory as to interests protected by s. 7 explained — Rights here in issue outside s. 7 protection — Charter, s. 7 not infringed by Canada Evidence Act, s. 39 Motions Judge also right in holding Charter, s. /5(1) not infringed by s. 39.

This was an appeal from an order of Jerome A.C.J. (the Motions Judge) dismissing a motion for the production of doc uments related to a ministerial discretion exercised pursuant to the Export and Import Permits Act. The decision established a scheme to allocate the issuance of import quotas for hatching eggs and chicks on the basis of market share. Documents which respondent refused to produce were a memorandum of the Special Trade Bureau of the Department of External Affairs and other documents referred to by the designated Min ister, namely the Secretary of State for External Affairs, in making the quota decision. Respondent's lawyer wrote to that of appellants undertaking to produce a document sent by the Department of External Affairs to the Minister but wrote again the following day reneging. The reason for this volte-face was that the quota decision had actually been taken not by the Sec retary of State for External Affairs but by the Minister of Inter national Trade under the latter's authority. A certificate was subsequently issued by the Clerk of the Privy Council under the Canada Evidence Act, section 39, stating that the docu ments referred to in Schedule A to the certificate were confi dences of the Queen's Privy Council for Canada.

This appeal concerns the meaning and extent of the privi lege from disclosure of such confidences. The Court had to resolve the following issues: 1) whether the Motions Judge erred in not finding that the documents the respondent refused to produce should be the subject of a qualified privilege under sections 37 or 38 of the Act rather than the subject of an abso lute privilege under section 39, and that, consequently, the claim of privilege could be subjected to judicial scrutiny; 2) whether section 39 of the Act infringes section 7 of the Cana- dian Charter of Rights and Freedoms; and 3) whether section 39 infringes section 15 of the Charter.

Held, the appeal should be dismissed.

Per MacGuigan J.A.: 1) The decision of the Supreme Court of Canada in Carey v. Ontario, cited by the appellants, may be considered as the most authoritative statement of the common

law as to Crown privilege from disclosure but it was not deter- minative of a matter involving the Canada Evidence Act, the purpose of which statute may have been to modify the com mon law. The wording of section 39 of the Act is clear enough: where a minister of the Crown or the Clerk of the Privy Coun cil certifies in writing that the information constitutes a confi dence of the Queen's Privy Council for Canada, disclosure of the information is to be denied without further examination. It is open to a Court to determine whether a certificate by a min ister or the Clerk asserts a privilege in the terms provided for by the statute, but it cannot go behind the certificate and examine the documents. No memorandum to a single minister acting under statutory authority can amount to a Privy Council confidence, since section 39 makes it clear that only informa tion that concerns the Cabinet in a collegial sense can qualify for absolute privilege. The appellants' argument failed not on the law but on the facts, as none of the documents for which the Clerk of the Privy Council claimed privilege was a discus sion paper sent to a single minister.

Because the quota decision was actually made by the Minis ter of International Trade in the name of the Secretary of State for External Affairs, any documents in question were sent to both Ministers, and for that reason qualified for the section 39 privilege. It is not for courts to pronounce upon the organiza tion of government departments, or the structure of ministerial decision-making. Once a litigant is unable to show that a cer tificate is clearly deficient, a Court cannot inquire any further into its bona fides and must respect the intent of Parliament to provide for exemption from judicial scrutiny in this special case. The decision in Best Cleaners and Contractors Ltd. v. The Queen does not support the appellants' proposition that an undertaking by counsel to produce a document always takes priority over a statutory privilege. The statutory authority vested in ministers of the Crown and the Clerk of the Privy Council could not be overridden by a solicitor of the Crown; moreover, a court has a wide discretion to relieve a solicitor from a personal undertaking based on a mistake of fact. The cases cited by the appellants are distinguishable, in that they do not involve a statutory privilege.

2) It was held in Canada (Attorney General) v. Central Cartage Co. that corporations cannot take advantage of section 7 of the Charter which is limited to human beings. In this case, the majority of the appellants being individuals rather than cor porations, they have standing to invoke section 7. The individ ual appellants argued that the use by the Crown of a certificate invoking absolute privilege under section 39 deprived them of the liberty of having the quota decision reviewed and con trolled by the courts. In a recent Supreme Court of Canada case, Lamer J. broached the question of what interests are pro tected by section 7. His Lordship propounded a theory which

attempts to unite the perspectives of the protected, triad of rights (life, liberty and the security of the person) with the prin ciples of fundamental justice. According to it, section 7 is implicated when physical liberty is restricted in any circum stances, when control over mental or physical integrity is exer cised, or when the threat of punishment is invoked for non compliance. There is nothing of that kind on the facts of the case at bar. The interest which the individual appellants wanted to assert is a shadowy traditional "right" of judicial review of administrative action in all cases. Section 7 of the Charter is therefore not infringed by section 39 of the Act.

3) The individual appellants submitted that section 39 gives the Crown, as party litigant, a right to suppress evidence, which right is not available to any other party litigant. The Federal Court of Appeal has stated in Central Cartage that sec tion 15 of the Charter was not contravened by the provisions of section 39. Equality "before and under the law" and "without discrimination" are the two sides of the same coin, the former connoting the positive note, the existence of equality, the latter the negative, the absence of discrimination. The Trial Judge was correct in holding that section 39 does not infringe subsec tion 15(1) of the Charter.

Per Hugessen J.A. (concurring in the result): The invocation of section 39 of the Canada Evidence Act in the circumstances in question was debatable. The first category of protected information dealt with in section 37 covers the general "public interest" privilege against disclosure, while section 38 deals with situations in which Parliament has clearly decided that there is a higher public interest against disclosure. In both cases, there is a recognition of competing interests which are subjected to judicial weighing and balancing. The final deter mination is also subject to appeal. But in section 39, Parlia ment has decreed an absolute, privilege with respect to confi dences of the Queen's Privy Council for Canada, denying, by implication, that there can be any competing interest. Disclo sure might clearly have been objected to under section 37, for there is an arguable public interest in maintaining confidential ity of communications between high functionaries and their ministers, or under section 38, since international trade is arguably a significant aspect of Canada's international rela tions. The only possible justification for the invocation of sec tion 39 appears to be that the quota decision was in fact taken by the Minister of International Trade but with the concurrence of the Secretary of State for External Affairs. There was here a gross abuse of executive power, but one which Parliament has clearly intended to be beyond the reach of judicial scrutiny.

Although section 7 of the Charter was not engaged in this case since the appellants had no liberty interest at stake, had a question of life, liberty or security of the person been raised herein, the government would have been hard put to establish

that section 39 is in compliance with the principles of funda mental justice. Absent a section 1 justification, the absolute prohibition and complete denial of any possibility of judicial review could not survive a properly launched Charter chal lenge.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canada Evidence Act, R.S.C. 1970, c. E-10, s. 36.3 (as enacted by S.C. 1980-81-82-83, c. 111, s. 4).

Canada Evidence Act, R.S.C., 1985, c. C-5, ss. 37, 38, 39.

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(1), 32(1).

Export and Import Permits Act, R.S.C., 1985, c. E-19, ss. 2, 5, 8(1), 14.

Federal Court Act, R.S.C., 1985, c. F-7, s. 18.

Workers' Compensation Act, R.S.A. 1982, c. W-16.

CASES JUDICIALLY CONSIDERED

FOLLOWED:

Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; [1990] 4 W.W.R. 481; (1990), 68 Man. R. (2d) 1; 56 C.C.C. (3d) 65; 77 C.R. (3d) 1; 109 N.R. 81; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; (1985), 24 D.L.R. (4th) 536; [1986] I 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.

APPLIED:

Canada (Attorney General) v. Central Cartage Co., [1990] 2 F.C. 641; (1990), 71 D.L.R. (4th) 253; 45 Admin. L.R. 1; 35 F.T.R. 160 (note); 109 N.R. 357 (C.A.); 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.); Attorney Gen eral of Canada v. Inuit Tapirisat of Canada et al., [1980] 2 S.C.R. 735; (1980), 115 D.L.R. (3d) 1; 33 N.R. 304.

DISTINGUISHED:

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; Best Cleaners and Contractors Ltd. v. The Queen, [1985] 2 F.C. 293; (1985), 58 N.R. 295 (C.A.); Re Mia and Medical Services Commission of British Colum- bia (1985), 17 D.L.R. (4th) 385; 61 B.C.L.R. 273; 15 Admin. L.R. 265; 16 C.R.R. 233 (B.C.S.C.).

CONSIDERED:

Budge v. Workers' Compensation Board (Alta.) No. 2 (1987), 80 A.R. 207; 42 D.L.R. (4th) 649; [1987] 6 W.W.R. 217; 54 Alta. L.R. (2d) 97; 29 Admin. L.R. 82 (Q.B.).

REFERRED TO:

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; Mullins v. Howell (1879), 11 Ch.D. 763; Uvanile v. Wawanesa Mut. Ins. Co. (1984), 44 C.P.C. 110; [1984] I.L.R. 1-1806 (Ont. H.C.); Guinness Peat Properties Ltd. v. Fitzroy Robinson Partnership, [1987] I W.L.R. 1027 (C.A.).

AUTHORS CITED

Blackstone, Commentaries on the Laws of England, 17 ed., 1830, I.

COUNSEL:

John T. Pepall for appellants.

Charleen H. Brenzall and J. E. Thompson, Q. C.,

for respondent Attorney General of Canada.

SOLICITORS:

Abraham, Duggan, Hoppe, Niman, Scott, Toronto, for appellants.

Deputy Attorney General of Canada for respon dent Attorney General of Canada.

The following are the reasons for judgment ren dered in English by

HUGESSEN J.A. (concurring in the result): I have had the benefit of reading the reasons for judgment prepared by my brother MacGuigan J.A. While I am in agreement with the disposition that he proposes, I have serious reservations which I find it necessary to express. The source of my reservations is two-fold.

In the first place, I am extremely concerned by the government's invocation of section 39 of the Canada Evidence Actl in the circumstances of this case. To understand my concern it is necessary to have in mind the scheme of sections 37, 38 and 39 which are grouped together under the heading "Disclosure of Government Information":

1 R.S.C., 1985, c. C-5.

Disclosure of Government Information

37. (1) A minister of the Crown in right of Canada or other person interested may object to the disclosure of information before a court, person or body with jurisdiction to compel the production of information by certifying orally or in writing to the court, person or body that the information should not be disclosed on the grounds of a specified public interest.

(2) Subject to sections 38 and 39, where an objection to the disclosure of information is made under subsection (1) before a superior court, that court may examine or hear the informa tion and order its disclosure, subject to such restrictions or con ditions as it deems appropriate, if it concludes that, in the cir cumstances of the case, the public interest in disclosure outweighs in importance the specified public interest.

(3) Subject to sections 38 and 39, where an objection to the disclosure of information is made under subsection (1) before a court, person or body other than a superior court, the objec tion may be determined, on application, in accordance with subsection (2) by

(a) the Federal Court-Trial Division, in the case of a person or body vested with power to compel production by or pur suant to an Act of Parliament if the person or body is not a court established under a law of a province; or

(b) the trial division or trial court of the superior court of the province within which the court, person or body exercises its jurisdiction, in any other case.

(4) An application pursuant to subsection (3) shall be made within ten days after the objection is made or within such fur ther or lesser time as the court having jurisdiction to hear the application considers appropriate in the circumstances.

(5) An appeal lies from a determination under subsection (2) or (3)

(a) to the Federal Court of Appeal from a determination of the Federal Court-Trial Division; or

(b) to the court of appeal of a province from a determination of a trial division or trial court of a superior court of a prov ince.

(6) An appeal under subsection (5) shall be brought within ten days from the date of the determination appealed from or within such further time as the court having jurisdiction to hear the appeal considers appropriate in the circumstances.

(7) Notwithstanding any other Act of Parliament,

(a) an application for leave to appeal to the Supreme Court of Canada from a judgment made pursuant to subsection (5) shall be made within ten days from the date of the judgment appealed from or within such further time as the court hav ing jurisdiction to grant leave to appeal considers appropri ate in the circumstances; and

(b) where leave to appeal is granted, the appeal shall be brought in the manner set out in subsection 60(1) of the

Supreme Court Act but within such time as the court that grants leave specifies.

38. (1) Where an objection to the disclosure of information is made under subsection 37(1) on grounds that the disclosure would be injurious to international relations or national defence or security, the objection may be determined, on appli cation, in accordance with subsection 37(2) only by the Chief Justice of the Federal Court, or such other judge of the Court as the Chief Justice may designate to hear such applications.

(2) An application under subsection (1) shall be made within ten days after the objection is made or within such further or lesser time as the Chief Justice of the Federal Court, or such other judge of that Court as the Chief Justice may designate to hear such applications, considers appropriate.

(3) An appeal lies from a determination under subsection (1) to the Federal Court of Appeal.

(4) Subsection 37(6) applies in respect of appeals under sub section (3), and subsection 37(7) applies in respect of appeals from judgments made pursuant to subsection (3), with such modifications as the circumstances require.

(5) An application under subsection (1) or an appeal brought in respect of the application shall

(a) be heard in camera; and

(b) on the request of the person objecting to the disclosure of information, be heard and determined in the National Capi tal Region described in the schedule to the National Capital

Act.

(6) During the hearing of an application under subsection (I) or an appeal brought in respect of the application, the person who made the objection in respect of which the application was made or the appeal was brought shall, on the request of that person, be given the opportunity to make representations ex parte.

39. (1) Where a minister of the Crown or the Clerk of the Privy Council objects to the disclosure of information before a court, person or body with jurisdiction to compel the produc tion of information by certifying in writing that the informa tion 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 pro posals 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;

(r) an agendum of Council or a record recording delibera tions or decisions of Council;

(d) a record used for or reflecting communications or dis cussions 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 sub ject of communications or discussions referred to in para graph (d); and

(fl draft legislation.

(3) For the purposes of subsection (2), "Council" means the Queen's Privy Council for Canada, committees of the Queen's Privy Council for Canada, Cabinet and committees of Cabinet.

(4) Subsection (1) does not apply in respect of

(a) a confidence of the Queen's Privy Council for Canada that has been in existence for more than twenty years; or

(b) a discussion paper described in paragraph (2)(b)

(i) if the decisions to which the discussion paper relates have been made public, or

(ii) where the decisions have not been made public, if four years have passed since the decisions were made.

It can be seen that this scheme sets out an ascend ing hierarchy of protected categories. The first cate gory, dealt with in section 37, covers the general "public interest" privilege against disclosure. It requires that the person objecting to disclosure spec ify the type of public interest which is claimed to be endangered; it then subjects that objection to a judi cial examination to determine if the public interest in disclosure, which is at the foundation of our system of justice, outweighs the public interest on which the objection is based. The judicial balancing is required to be made by a superior court and is subject to appeal to the relevant court of appeal, and, with leave, to the Supreme Court of Canada.

Section 38 deals with situations in which Parlia ment has clearly decided that there is a higher public interest against disclosure. It applies when the objec tion is based on possible harm to Canada's interna tional relations, national defence or security. The objection can only be determined by the Chief Justice

of this Court or a judge designated by him and the section contains special provisions to protect the security of the information which is the subject of the objection in the event that disclosure is not ordered. As in the case of section 37, however, there is a rec ognition that there are competing interests involved and they are subjected to judicial weighing and bal ancing. Similarly, the final determination is also sub ject to appeal.

Finally in section 39, Parliament has decreed an absolute privilege with respect to confidences of the Queen's Privy Council for Canada. The mere taking of the objection by the production of the requisite certificate forecloses not only the disclosure of the information sought but also any inquiry into whether or not the protected interest outweighs the interests of the administration of justice. Indeed the section, by implication, denies that there can be any competing interest. No judge of any court may question the fiat of a Minister of the Crown or the Clerk of the Privy Council, no matter how insignificant the protected communication or how vital it may be to the proper resolution of a question before the Court.

We have some clues as to the nature of the docu ments objected to in this case. They may be briefly described as communications from senior civil ser vants to the responsible Minister regarding the pro posed exercise of a ministerial discretion under the Export and Import Permits Act. 2

Clearly disclosure might have been objected to under section 37, for there is at least an arguable pub lic interest in maintaining confidentiality of commu nications between high functionaries and their minis ters. Very likely the disclosure could also have been objected to under section 38, since the subject of international trade is at least arguably a significant aspect of Canada's international relations.

2 R.S.C., 1985, c. E-19.

The objection, however, was in fact taken under section 39. The only possible justification for this appears to be in the wholly fortuitous circumstance that the internal organization of the Department of External Affairs was such that two Ministers were nominally responsible for the decision. It seems clear from the material that the decision was in fact taken by the Minister for International Trade, but that it required the concurrence of the Secretary of State for External Affairs. That fortuitous circumstance alone could serve to bring the documents within the ambit of paragraphs (d) and (e) of subsection 39(2), as cer tified by the Clerk of the Privy Council.

In the circumstances, we can, of course, only guess at the true nature of the documents objected to from the few bits of information available. If, however, I am correct in thinking that the documents are as I have described them to be, I consider this case to be a gross abuse of executive power, but one which Par liament, sadly, has clearly intended to be out of reach of judicial scrutiny.

My second reservation flows from the appellants' argument based upon the 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]]. I am in full agreement with MacGuigan J.A.'s view that sec tion 7 of the Charter is not engaged in this case; the appellants simply do not have any liberty interest at stake. If there were any question of life, liberty or security of the person raised in these proceedings, however, it seems to me that the government would be hard put to claim that section 39 is in compliance with the principles of fundamental justice.

Those principles as they relate to the question of "Crown privilege" were recently and forcefully stated by La Forest J. in Carey v. Ontario 3 [at page 654]:

In the end, it is for the court and not the Crown to determine the issue. This was recently re-affirmed by this Court in

3 [1986] 2 S.C.R. 637.

Smallwood v. Sparling, [1982] 2 S.C.R. 686, to which I shall return. The opposite view would go against the spirit of the legislation enacted in every jurisdiction in Canada that the Crown may be sued like any other person. More fundamen tally, it would be contrary to the constitutional relationship that ought to prevail between the executive and the courts in this country. [Emphasis added.]

Absent a section 1 justification, of which there is no question in the present record, I do not see how the absolute prohibition and complete denial of any possibility of judicial review could survive a properly launched Charter challenge.

Accordingly, I would, with reluctance, dispose of the matter as proposed by MacGuigan J.A.

* * *

The following are the reasons for judgment ren dered in English by

MACGUIGAN J.A.: This appeal from an order [T-2448-90] of Jerome A.C.J., acting as Motions Judge, made on June 17, 1991 (with reasons dated September 30, 1991 [not yet reported]) dismissing a motion for the production of documents brought by the appellants, concerns the meaning and extent of the privilege from disclosure of a confidence of the Queen's Privy Council for Canada under section 39 of the Canada Evidence Act (the "Act").

Section 39 of the Act (formerly section 36.3 of R.S.C. 1970, c. E-10 (as enacted by S.C. 1980-81-82- 83, c. 111, s. 4)) reads as follows:

(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 pro posals 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 dis cussions between ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy;

() draft legislation.

(3) For the purposes of subjection (2), "Council" means the Queen's Privy Council for Canada, committees of the Queen's Privy Council for Canada, Cabinet and committees of Cabinet.

(4) Subsection (1) does not apply in respect of

(a) a confidence of the Queen's Privy Council for Canada that has been in existence for more than twenty years; or

(b) a discussion paper described in paragraph (2)(b)

(i) if the decisions to which the discussion paper relates have been made public, or

(ii) where the decisions have not been made public, if four years have passed since the decisions were made.

The privilege from disclosure granted to the Crown under section 39 is absolute. Section 37 of the Act provides for qualified privilege: a minister of the Crown or other person interested may object to the disclosure of information, but it is left to the discre tion of a superior court judge to determine, after examination, whether the information should be dis closed, and, if so, subject to what restrictions or con ditions. Where objection to the disclosure of informa tion is taken on grounds that the disclosure would be injurious to international relations, or national defence, or security, section 38 provides that the objection may be determined only by a judge of the Federal Court of Canada, designated by the Chief Justice of that Court.

The documents in question in the case at bar relate to a ministerial discretion exercised pursuant to the Export and Import Permits Act. Section 5 of that Act permits the Governor in Council to establish a list of goods subject to import control called an "Import Control List". By subsection 8(1) of that Act, the des ignated minister is empowered to issue import per mits as follows:

8. (1) The Minister may issue to any resident of Canada applying therefor a permit to import goods included in an Import Control List, in such quantity and of such quality, by such persons, from such places or persons and subject to such other terms and conditions as are described in the permit or in the regulations.

"Minister" is defined in the interpretation section of that Act (section 2) as follows:

2....

"Minister" means such member of the Queen's Privy Council for Canada as is designated by the Governor in Council as the Minister for the purposes of this Act;

The Minister designated by the Governor in Coun cil for the purposes of the Export and Import Permits Act is the Secretary of State for External Affairs (Appeal Book II, at page 51). Section 14 of that Act forbids the importation of "any goods included in an Import Control List except under the authority of and in accordance with an import permit issued under this Act."

The substantive proceeding in this case is an appli cation for an order in the nature of certiorari and mandamus under section 18 of the Federal Court Act [R.S.C., 1985, c. F-7] with respect to the ministerial decision set out in Notice to Importers No. 375, dated May 8, 1989, establishing a scheme to allocate the issuance of import quotas for hatching eggs and chicks on the basis of market share ("the quota deci sion" at Appeal Book II, at pages 152-158).

The present proceeding is a motion for the produc tion of a memorandum of the Special Trade Relations Bureau of the Department of External Affairs and any other documents referred to by the designated Minister in making the quota decision, an issue which arose out of the cross-examination on affidavit

of Pierre Gosselin, an affiant for the respondent, when on legal advice he refused to produce any such documents (Cross-examination on affidavit of Pierre Gosselin, November 27, 1990, at pages 5 f.; particu larly at Question 21).

Subsequently, in a letter dated January 15, 1991, counsel for the respondent wrote to counsel for the appellants as follows, undertaking to produce a docu ment sent by the Department of External Affairs to the Minister, while claiming privilege for another (Appeal Book I, at pages 29-30):

As you know, Mr. Gosselin refused on his cross-examination to produce any documents which flowed between the Depart ment and the Minister which are relevant to this application. In addition, Mr. Gosselin took under advisement whether studies existed within the Department in support of the recommenda tion made by Mr. Crosby [the Minister for International Trade]. I may now report that the Department has no studies in support of the import quota allocation scheme and that there is one document sent to the Minister. This latter document may be made available for purposes of litigation only as it contains material sensitive to international trade. I confirm that you undertake to receive it and hold it private and confidential but may refer to it during this litigation as necessary.

Finally, there is one Cabinet document for which the Respon dent makes objection under s. 39 of the Canada Evidence Act and for which a Certificate in writing will be produced in due course. This document is a discussion paper and record as described in that section of the Canada Evidence Act.

In a further letter, the next day, counsel for the respondent reversed himself (Appeal Book I, at page 28):

In my letter to you of January 15, 1991 in this matter, I indi cated that there is a government document that the Crown is prepared to disclose and indicated the Crown would disclose it under an undertaking to hold it private and confidential.

However, I must inform you that our opinion has been revised with respect to this particular document and I now must inform you that s. 39 of the Canada Evidence Act applies to it. I will provide a Certificate for it at the same time as the other Certifi cate I have indicated would be forthcoming. I anticipate that I will have the Certificates available sometime next week.

The explanation for this change of mind respecting the production of the document by counsel for the

respondent becomes apparent from a close reading of the materials. At the time of the letter of January 15, 1991, counsel believed that the quota decision had been made by the Secretary of State for External Affairs, upon the recommendation of the Minister for International Trade, as is evident from the letter itself (Appeal Book I, at page 29):

[T]he Minister designated by the Export and Import Permits Act, (and the Minister who issued the Notice to Importers dated May 8, 1989), is the Secretary of State for External Affairs. Under the Department of External Affairs Act, the Minister for International Trade is designated to assist the Minister of State in his duties. In this case, the Minister of International Trade recommended the allocation of import quota as in the Notice to Importers, to the Secretary of State for External Affairs. After this recommendation was accepted, the Notice to Importers was issued.

This turned out not to be the case, as is revealed by a letter of May 2, 1991, from counsel for the respon dent to counsel for the appellants: 4

In the letter dated January 15, 1991 from this office, it is stated that the decision was made by the Minister designated under the Export and Import Permits Act upon the recommendation of the Minister of International Trade.

However, after further clarification, it is apparent that the deci sion on quota itself was made by Mr. Crosby [the Minister for International Trade].

Pursuant to section 3 of the Department of External Affairs Act, the Minister for International Trade assists the Secretary for External Affairs in carrying out the latter's responsibilities relating to international trade. Section 5 of the same Act pro vides that the Minister for International Trade shall act with the concurrence of the Secretary of State for External Affairs in carrying out his responsibilities. In this case, a memoran dum recommending the principles for the allocation of the import quota was prepared by the Special Trade Relations Bureau of the Department of External Affairs and was sent to both Ministers. Acting under the authority of sections 3 and 5, the Minister for International Trade reached the decision to allocate the import quota in the manner set out in Notice to Importers 375. Subsequently, import permits were issued pur suant to section 8 of the Export and Import Permits Act under the authority of the Secretary of State of External Affairs.

4 This letter was not included in the Appeal Book, but is in the Court file as exhibit A to the affidavit of Steven Accette, sworn May 24, 1991. This affidavit was before the Trial Judge, and was accepted by both parties before us.

An affidavit by a fellow government counsel makes it clear that it was this factual discovery by counsel for the respondent which led to his change of mind on disclosure (Appeal Book II, at page 179):

7. On January 15, 1991, Mr. Parke [counsel for the respondent] wrote to Mr. Stott that one document, previously refused at Q. 21, would be disclosed on Mr. Stott's undertaking to receive it and hold it confidential....

8. I am informed by Mr. Parke and believe that the intent to disclose was based on a misunderstanding by Mr. Parke as to the persons to whom the document was originally delivered and that, on a further review, disclosure was again refused as a confidence of the Queen.

After this change of mind, a section 39 certificate dated January 24, 1991, was issued by Paul M. Tellier, Clerk of the Privy Council, to the effect that the documents referred to in Schedule A to the certificate were confidences of the Queen's Privy Council for Canada for the reasons set out in the Schedule, that neither paragraphs (a) nor (b) of sub section 39(4) applied to the documents, and that he objected both to the disclosure of the documents and to the giving of oral evidence on the contents of the documents. Schedule A to the certificate is as follows (Appeal Book I, at page 42):

1. Document 1 is a copy of 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 dis cussions referred to in paragraph (d) within the meaning of paragraph 39(2)(e) of the said Act.

2. Document 2 is a copy of a record used for or reflecting communications or discussions between Ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy within the meaning of paragraph 39(2)(d) of the said Act.

3. Document 3 is a copy of 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 dis cussions referred to in paragraph (d) within the meaning of paragraph 39(2)(e) of the said Act.

As an alternative to the production of the docu ments referred to by the designated Minister in mak-

ing the quota decision, the appellants sought to cross- examine the Clerk of the Privy Council on his certifi cate, or in the further alternative, to subpoena the designated Minister to testify as to the matters in issue.

The learned Motions Judge came to the following conclusion, based in considerable part upon the deci sion of this Court in Canada (Attorney General) v. Central Cartage Co., [1990] 2 F.C. 641 (C.A.) (Appeal Book II, at page 216):

I conclude, therefore, that section 39 of the Canada Evi dence Act is constitutionally sound, that the certificate of Mr. Tellier on its face meets the requirements set out in section 39, and that the solicitor's undertaking in this instance does not warrant disclosure of information that has not already been disclosed to the applicants and for which privilege has not been waived. The applicant's arguments have in large part been addressed by the Court of Appeal in Central Cartage Co. and I do not find any circumstances upon which this matter may be distinguished. Accordingly, I am bound by the clear and unam biguous reasoning therein.

The first attack by the appellants on the decision of the Motions Judge was that he erred in not finding that on the evidence, the documents the respondent refused to produce could not be the subject of a cer tificate under section 39 of the Act, which grants absolute privilege to the Crown, but rather had to be the subject of qualified privilege under sections 37 or 38 of the Act, and that, consequently, the claim of privilege could be subjected to judicial scrutiny.

In support of this argument, the appellants cited Carey v. Ontario, [1986] 2 S.C.R. 637, where the Supreme Court of Canada ordered disclosure of gov ernment documents for the Court's inspection. Since this case involved the Government of Ontario, the provisions of the Canada Evidence Act were not applicable. The case may therefore be considered to be the most authoritative statement of the common law in this area of Crown privilege from disclosure. La Forest J., speaking for a unanimous Court, stated (at page 659) that "[t]he idea that Cabinet documents should be absolutely protected from disclosure has in

recent years shown considerable signs of erosion." He further declared (at pages 653-654):

The public interest in the non-disclosure of a document is not, as Thorson J.A. noted in the Court of Appeal, a Crown privilege. Rather it is more properly called a public interest immunity, one that, in the final analysis, is for the court to weigh. The court may itself raise the issue of its application, as indeed counsel may, but the most usual and appropriate way to raise it is by means of a certificate by the affidavit of a Minis ter or where, as in this case, a statute permits it or it is other wise appropriate, of a senior public servant. The opinion of the Minister (or official) must be given due consideration, but its weight will vary with the nature of the public interest sought to be protected. And it must be weighed against the need of pro ducing it in the particular case.

In the end, it is for the court and not the Crown to determine the issue. ... The opposite view would go against the spirit of the legislation enacted in every jurisdiction in Canada that the Crown may be sued like any other person. More fundamen tally, it would be contrary to the constitutional relationship that ought to prevail between the executive and the courts in this country.

While Carey represents a very important statement of the common law, it cannot, in my view, be consid ered to be determinative of the law found in the Canada Evidence Act, since the purpose of statute law may well be to modify the common law rather than to declare it. Everything depends on the wording of the particular statute, considered in its total con text.

The wording of section 39 of the Act seems to me to be clear enough: an objection to the disclosure of information by a minister of the Crown or the Clerk of the Privy Council is determinative of the matter where the minister or the Clerk certifies in writing that the information constitutes a confidence of the Queen's Privy Council for Canada; in that case dis closure of the information is to be denied without further examination.

As Strayer J. said in Smith, Kline & French Labo ratories Limited v. Attorney General of Canada, [1983] 1 F.C. 917 (T.D.) at pages 929-931, and as was reinforced by this Court in Central Cartage,

supra, it is surely open to a court to determine whether a certificate by a minister or the Clerk asserts a privilege in the terms allowed by the statute, but a court cannot go behind the certificate and examine the documents. The matter was put this way by Iacobucci C.J. for this Court in Central Cartage (at pages 652-653) where the Clerk of the Privy Council had objected to the disclosure of eight docu ments by issuing a certificate under what is now sec tion 39:

It appears clear that Parliament intended by passing section 36.3 [now section 39] 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 the Minis ter 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 [now section 37] and 36.2 [now section 38] of the Canada Evidence Act. However, 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.

The extrinsic evidence which the appellants urged us to take into account here was not contained in the documents but in the affidavit evidence and in the testimony of Gosselin on cross-examination. I am prepared to accept for the sake of argument, without deciding, that a court might consider such evidence, where sufficiently clear, in relation to the assertions made by the certificate, but in my opinion the availa ble evidence does not assist the appellants in the case at bar.

The appellants' contention, in a nutshell, is thus: that no memorandum to a single minister acting under statutory authority can amount to a Privy Council confidence, because the definition of such a confidence in subsection 39(2) includes only matters which concern the whole of the Privy Council, a

committee of Council, or at a minimum more than one minister. 5

I am prepared to accept that contention. As Strayer J. put it in Smith, Kline & French (at page 930):

While subsection 36.3(2) [now subsection 39(2)] does not pur port to be an exhaustive definition, it is hard to imagine that materials which are implicitly but clearly excepted from the listed categories of documents could be regarded as still within the general term "confidence of the Queen's Privy Council."

Although a minister may be said to act as a privy councillor in every official action, that is not the test for privilege provided by the Act. Section 39 makes it clear, it seems to me, that only information that con cerns the Cabinet 6 in a collegial sense can qualify for absolute privilege. Otherwise, information relating to the official duties of privy councillors who are former ministers but no longer members of the Cabinet, or those who have never been ministers, such as mem bers of the Security Intelligence Review Committee, would also enjoy absolute privilege. Such an inter pretation would provide, I believe, a gratuitous and unwarranted extension of absolute privilege.

It is not on the law that the appellants fail, but on the facts. Their law is right, their facts deficient. They hypothesized a discussion paper sent to a single min ister, based on a mere supposition made by Gosselin during cross-examination on his affidavit (at pages 5-6, questions 19 and 20), a supposition which subse quently turned out not to be true, as none of the docu ments for which the Clerk of the Privy Council claimed privilege was such a memorandum.

5 I do not treat the appellants' argument in relation to para graph 39(4)(b) since it has no meaning unless privilege is sought under paragraph 39(2)(6), which is not the case here.

6 The Cabinet is, of course, technically only a committee of the Privy Council.

Moreover, it is apparent from the facts in the case at bar that, because of the peculiar organization of the department of External Affairs, two ministers, the Secretary of State for External Affairs and the Minis ter for International Trade, were involved in the quota decision. The decision was taken in the name of the Secretary of State for External Affairs and pre sumably with his knowledge and approbation, but it was actually made by the Minister for International Trade. Accordingly, the evidence reveals that any documents in question were sent to both Ministers, and for that reason qualify for the section 39 privi lege.

In his certificate the Clerk of the Privy Council tracks the language of paragraphs (d) and (e) of subsection 39(2), a procedure which was upheld by lacobucci C.J. in Central Cartage (at page 654). Paragraph (a) of the certificate describes "information contained in ... a record used for ... communications ... between ministers of the Crown on matters relating to the making of govern ment decisions ... ". Paragraph (e) refers to "infor- mation contained in ... a record the purpose of which is to brief Ministers of the Crown in relation to matters ... that are the subject of communications referred to in paragraph (d)." Nothing available to us from the evidence about the documents in question here casts any doubt whatsoever upon the statements made by the Clerk of the Privy Council in his certifi cate.

In fact, apparently it was the discovery by counsel for the respondent that the document(s) in question was sent to two ministers rather than just to one, and of the mutual interdependence of their ministerial roles, that led him to withdraw the undertaking to produce that he had briefly given. It is not for courts to pronounce upon the organization of government departments, or the structure of ministerial decision- making. Once a litigant is unable to show that a cer tificate is clearly deficient, either on its face or in relation to the evidence available, a court may inquire no further into its bona fides, but must respect the intent of Parliament to provide for exemption from judicial scrutiny in this special case.

The appellants also contended that the Motions Judge erred in not enforcing the undertaking given by the respondent, and particularly in not applying Best Cleaners and Contractors Ltd. v. The Queen, [1985] 2 F.C. 293 (C.A.), to hold that the documents could not be protected by a section 39 certificate when it had already been agreed to produce them. But Best Cleaners is a very different case from that at bar. In that case the gist of the information had already, and without objection, been produced on discovery. In holding that a certificate was not a bar in those pecu liar circumstances to the admission in evidence of the information, Mahoney J.A. said (at page 311):

There is a large measure of unreality in the proposition that the filing of a certificate has the effect of undoing the disclo sure of information already lawfully disclosed to the opposing party in a legal proceeding. Everyone with a legitimate interest in the information has it except the Court. Maintenance of con fidentiality against only the Court in such a case implies a Par liamentary intention to permit the filing of a certificate to obstruct the administration of justice while serving no apparent legitimate purpose. No such intention is expressed by Parlia ment; to infer it is repugnant.

There is no support in Best Cleaners for the appel lants' proposition that an undertaking by counsel to produce takes priority in all circumstances over a statutory privilege. In my view that proposition is untenable. The statutory authority vested in ministers of the Crown and the Clerk of the Privy Council could not be overridden by a solicitor of the Crown, and the facts here fall far short of a waiver of this public-interest privilege. Moreover, a court has a wide discretion to relieve a solicitor from a personal undertaking where it has been based on a mistake of fact: Mullins v. Howell (1879), 11 Ch.D. 763; Uvanile v. Wawanesa Mut. Ins. Co. (1984), 44 C.P.C. 110 (Ont. H.C.); and Guinness Peat Properties Ltd. v. Fitzroy Robinson Partnership, [1987] 1 W.L.R. 1027 (C.A.). The cases cited by the appellants are distin guishable, in that they do not involve a statutory priv ilege. In my respectful opinion, the Motions Judge

was entirely right in holding that "[t]he clear direc tion provided within this statutory provision cannot be overridden by an agent, or in this case, a solicitor, of the Crown" (Appeal Book II, at page 215).

As the certificate itself asserts (Appeal Book I, at page 41), the objection to disclosure of the docu ments must logically and necessarily extend to oral evidence that might be given on the contents of the same documents. This conclusion therefore disposes of the appellants' alternative arguments, apart from the Charter issues raised.

III

The appellants also sought to challenge section 39, as applied, under both sections 7 and 15 of the Cana- dian Charter of Rights and Freedoms.

At first blush it might seem that both those avenues of attack were foreclosed by the Central Cartage decision. On section 7, Iacobucci C.J. wrote in that case (at page 655):

Respondents argue that section 36.3 [now section 39] infringes section 7 of the Charter in that the section deprives the respondents of their security of the person without compli ance with 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.

On section 15, he wrote (at page 657):

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 [now section 39] of the Canada Evidence Act which gives to the Crown, as a party litigant, a right to suppress evidence—con- fidences of the Queen's Privy Council—not otherwise availa ble to others, including the respondents.

Again, I think that the respondents as corporations cannot avail themselves of the protection of section 15.

However, even if a corporation is entitled to standing to assert section 15 protection, I can see no contravention of sec tion 15 according to the tests laid down by the Supreme Court of Canada....

In the case at bar, however, the majority of the appellants are individuals rather than corporations, and so have standing to invoke section 7, which reads as follows:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accor dance with the principles of fundamental justice.

The use by the Crown of a certificate invoking absolute privilege under section 39 deprives the indi vidual appellants, it was argued, of the liberty of hav ing the quota decision reviewed and controlled by the courts. In support, the individual appellants cited Re Mia and Medical Services Commission of British Columbia (1985), 17 D.L.R. (4th) 385 (B.C.S.C.), at pages 411-412, where McEachern C.J.S.C. (as he then was) wrote: 7

Some authors have suggested that "liberty" in s. 7 is only concerned with actual physical liberty from captivity and not human conduct or activity; that it does not relate to economic matters; or that its meaning can be restricted in various ways. Although there must always be restraints on the right of free persons to do anything they wish, requirements of reasonable ness are imposed by the concluding words of s. 7 and s. 1 which I shall mention later but, speaking generally, limitations on traditional liberties should be applied reluctantly and with extreme care.

I am aware that, generally speaking, American courts have been reluctant to interfere in the legislative settlement of eco nomic problems. I accept that as a general rule, but I am not concerned with duly enacted legislation in this case, and even if I were, there are some rights enjoyed by our people includ ing the right to work or practise a profession that are so funda mental that they must be protected even if they include an eco nomic element.

7 As was pointed out by the Motions Judge, Min is, how ever, in any event distinguishable, as the Court there held that a refusal by the Medical Services Commission to grant a physi cian a billing number to practise as a general practitioner was "decreed arbitrarily and not by an enactment" (at p. 416), which could not have been argued in the case at bar.

At the very least, liberty must include those freedoms of lawful conduct always enjoyed by Canadians and by our prede cessors in the Anglo-Saxon heritage. If we have enjoyed a right for many centuries then it must surely be included in "lib- erty" whether specifically stated in the Charter or not.

To attempt to establish judicial assessment as a

right enjoyed for many centuries, the individual appellants referred to Blackstone, Commentaries on the Laws of England, 17 ed., 1830, I, at page 141:

3. A third subordinate right of every Englishman is that of applying to the courts of justice for redress of injuries. Since the law is in England the supreme arbiter of every man's life, liberty, and property, courts of justice must at all times be open to the subject, and the law be duly administered therein.

They also cited Budge v. Workers' Compensation Board (Alta.) No. 2 (1987), 80 A.R. 207 (Q.B.), where Bracco J. held that section 7 should be given a broad definition so as to include the fundamental right of an aggrieved person to seek redress for a tort as an element of security of the person, and accord ingly declared the relevant provision of the Alberta Workers' Compensation Act [R.S.A. 1982, c. W-16], as applied, to be inconsistent with section 7.

The individual appellants also referred to Carey, supra, to the effect already noted. However, no con sideration of the Charter occurred in Carey, doubtless because the action there was brought in 1976, well before the coming into effect of the Charter.

The question of what liberties are included in sec tion 7 was most recently broached by Lamer J. (as he then was) in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123, where Manitoba had referred to the courts the consti tutionality of section 193 and paragraph 195.1(1)(c) of the Criminal Code, dealing respectively with the keeping of a common bawdy house and with commu nicating for the purpose of engaging in prostitution. The Supreme Court, on a 4-2 division, upheld the constitutionality of the legislation.

The other members of the majority did not find it necessary to deal with the precise question with which Lamer J. dealt extensively, as follows (at pages 1173-1178):

In the B.C. Motor Vehicle Act Reference [Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486], for example, this Court said the following in respect of defining the principles of funda mental justice at p. 503:

Many have been developed over time as presumptions of the common law, others have found expression in the inter national conventions on human rights. All have been recog nized as essential elements of a system for the administra tion of justice which is founded upon a belief in "the dignity and worth of the human person" ... and on the "rule of law"....

In other words, the principles of fundamental justice are to be found in the basic tenets of our legal system. They do not lie in the realm of general public policy but in the inher ent domain of the judiciary as guardian of the justice system. [Emphasis added.]

This passage is, in my view, instructive of the kind of life, lib erty and security of the person sought to be protected through the principles of fundamental justice. The interests protected by s. 7 are those that are properly and have been traditionally within the domain of the judiciary. Section 7 and more specifi cally ss. 8-14 protect individuals against the state when it invokes the judiciary to restrict a person's physical liberty through the use of punishment or detention, when it restricts security of the person, or when it restricts other liberties by employing the method of sanction and punishment tradition ally within the judicial realm. This is not to say that s. 7 pro tects only an individual's physical liberty. It is significant that the section protects one's security of the person as well. As I stated in Mills v. The Queen, [1986] I S.C.R. 863, at pp. 919- 20.:

... security of the person is not restricted to physical integ rity; rather, it encompasses protection against `overlong sub jection to the vexations and vicissitudes of a pending crimi nal accusation" ... These include stigmatization of the accused, loss of privacy, stress and anxiety resulting from a multitude of factors, including possible disruption of family, social life and work, legal costs, uncertainty as to the out come and sanction.

This Court has since reiterated the view that stigmatization of an accused may deprive him of the rights guaranteed by s. 7 in R. v. Vaillancourt, [1987] 2 S.C.R. 636, at p. 651. In addition, the Chief Justice in R. v. Morgentaler, supra, at p. 56, held that state interference with bodily integrity and serious state- imposed psychological stress could trigger a restriction of security of the person. In so doing he quoted with approval the statement of the Ontario Court of Appeal in R. v. Videoflicks Ltd. (1984), 48 O.R. (2d) 395, at p. 433, to the effect that the

right to life, liberty and security of the person "would appear to relate to one's physical or mental integrity and one's control over these" (emphasis added).

The common thread that runs throughout s. 7 and ss. 8-14, however, is the involvement of the judicial branch as guardian of the justice system. [ ...]

[T]he confinement of individuals against their will, or the restriction of control over their own minds and bodies, are pre cisely the kinds of activities that fall within the domain of the judiciary as guardian of the justice system. By contrast, once we move beyond the "judicial domain", we are into the realm of general public policy where the principles of fundamental justice, as they have been developed primarily through the common law, are significantly irrelevant. In the area of public policy what is at issue are political interests, pressures and val ues that no doubt are of social significance, but which are not "essential elements of a system for the administration of jus tice", and hence are not principles of fundamental justice within the meaning of s. 7. The courts must not, because of the nature of the institution, be involved [in] the realm of pure public policy; that is the exclusive role of the properly elected representatives, the legislators. To expand the scope of s. 7 too widely would be to infringe upon that role.

Put shortly, I am of the view that s. 7 is implicated when the state, by resorting to the justice system, restricts an individu al's physical liberty in any circumstances. Section 7 is also implicated when the state restricts individuals' security of the person by interfering with, or removing from them, control over their physical or mental integrity. Finally, s. 7 is impli cated when the state, either directly or through its agents, restricts certain privileges or liberties by using the threat of punishment in cases of non-compliance.

Although this may appear to be a limited reading of s. 7, it is my view that it is neither wise nor necessary to subsume all other rights in the Charter within s. 7. A full and generous interpretation of the Charter that extends the full benefit of its protection to individuals can be achieved without the incorpo ration of other rights and freedoms within s. 7.

This is a complete theory of section 7, the only one which I believe has been authoritatively put forth thus far. It attempts to unite the perspectives of the protected triad of rights ("life, liberty and the security of the person") and of the principles of fundamental justice, since, as stated, it enunciates "the kind of life, liberty and security of the person sought to be pro tected through the principles of fundamental justice". It is also in accord with the previous approaches to the issue by the Supreme Court, building in particular

on its seminal decision, also by Lamer J., in Re B.C. Motor Vehicle Act [[1985] 2 S.C.R. 486]. As well, it avoids the pitfalls of judicial interference in general public policy. It may or may not come to represent the final judicial statement of the meaning of section 7, but I believe that any eventual judicial synthesis will likely be an approximation of Lamer J.'s view. I am therefore prepared to adopt this statement as a working hypothesis for purposes of this case.

Accordingly, section 7 is implicated when physical liberty is restricted in any circumstances, when con trol over mental or physical integrity is exercised, or when the threat of punishment is invoked for non compliance. There is nothing of that kind, or within striking distance of it, on the facts of the case at bar. The interest which the individual appellants want to assert is a shadowy traditional "right" of judicial review of administrative action in all cases. However, the jurisprudence shows that such a right can be pre cluded entirely except as to jurisdiction, where the executive branch of government is involved, even when fairness itself is at stake: Attorney General of Canada v. Inuit Tapirisat of Canada et al., [1980] 2 S.C.R. 735.

The invocation of paragraph 32(1) of the Charter by the individual appellants does not change this. Of course, the Charter applies. The question is not whether it applies, but whether, if applied, it is infringed by section 39.

I must conclude that section 39 of the Act does not infringe section 7 of the Charter, and that the Motions Judge was correct in so holding.

The individual appellants' final challenge to sec tion 39 rests on subsection 15(1) of the Charter, in that section 39 gives the Crown, as a party litigant, a right to suppress evidence, which right is not availa-

ble to any other party litigant. Subsection 15(1) reads as follows:

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 dis crimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

It will be recalled that, in giving judgment in Cen tral Cartage, Iacobucci C.J. laid down, not only that corporations could not avail themselves of the protec tion of section 15, but also that in any event section 15 was not contravened by the provisions of section 39. He wrote (at pages 657-659):

However, even if a corporation is entitled to standing to assert section 15 protection, I can see no contravention of sec tion 15 according to the tests laid down by the Supreme Court of Canada in Andrews v. Law Society of British Columbia [[1989] 1 S.C.R. 143]. In that case, Mr. Justice McIntyre stated that the purpose of section 15 is to ensure equality in the for mulation and application of the law. For a section 15 contra vention, 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 [[1990] I S.C.R. 695] particularly helpful. In that case, it was argued that subsections 17(1) and (2) of the Federal Court Act and subsec tion 7(1) of the Crown Liability Act conferring exclusive juris diction 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 claims brought 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 compari

son 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. organized society. It will be recalled that the Oxford English Dictionary defines an "individual" as "a single human being", in contra-distinction to "society". There fore, 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.

This principle is equally applicable to the facts of this case and is sufficient to dispose of the issue. In the cir cumstances of the case at bar, the Crown is simply not an individual with whom a comparison can be made to deter mine whether a s. 15(1) violation has occurred.

In the case at bar, the Crown in section 36.3 [now section 39] 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 granting 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. Certainly, it cannot be said that individuals claim ing relief against the Federal Court are in the words of Wil- son 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.

Section 36.3 [now section 39] 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.

In an attempt to distinguish Central Cartage, Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, and Rudolph Wolff, & Co. Ltd.

v. Canada, [1990] 1 S.C.R. 695, the individual appel lants were reduced to contending that the introduc tory clause of subsection 15(1) ("Every individual is equal before and under the law") establishes a sepa rate right which the courts in those cases failed to consider, presumably per incuriam. This contention was, I believe, directly refuted by Iacobucci C.J. in the above citation where he said:

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 discrimi natory. [Emphasis added.]

Another way of making the same point would be to say that equality "before and under the law" and "without discrimination" are really the two sides of the same coin, the former connoting the positive note, the existence of equality, the latter the negative, the absence of discrimination.

I therefore conclude that the Motions Judge was correct in holding that section 39 does not infringe subsection 15(1) of the Charter.

In the result, the appeal should be dismissed with costs.

LINDEN J.A.: I agree.

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