Judgments

[2000] 3 F.C. 185

A-426-99

Alissa Westergard-Thorpe, Annette Muttray, Jamie Doucette, Mark Brooks, Denis Porter, Deke Samchok and Craig Elton Jones (Appellants)

v.

The Attorney General of Canada, Her Majesty the Queen in Right of Canada (Respondents)

Craig Elton Jones, Jonathan Oppenheim, Jamie Doucette, Deke Samchok, Denis Porter and Annette Muttray (Appellants)

v.

Her Majesty the Queen, The Minister of Justice and The Attorney General of Canada (Respondents)

Indexed as: Singh v. Canada (Attorney General) (C.A.)

Court of Appeal, Strayer, Robertson and McDonald JJ.A.—Vancouver, November 22, 1999; Ottawa, January 14, 2000.

Constitutional law — Fundamental principles — Appeal from F.C.T.D. judgment dismissing action for declaration Canada Evidence Act, s. 39 unconstitutional — S. 39 providing where Clerk of Privy Council certifying in writing document confidence of Queen’s Privy Council, disclosure shall be refused without examination, hearing of information by court — Constitution supreme over ordinary laws — Legislation not presumed unconstitutional because alters common law — History of s. 39 in light of common law — Prima facie s. 39 intra vires measure to define privileges of federal Executive in furtherance of well-established principles of Cabinet secrecy — No clear, compelling contrary constitutional imperative — Separation of powers should embrace mutual respect among “branches” of government — Certification of fact binding on courts because nature of subject-matter consistent with traditional bounds of mutual respect owed by each “branch” of government to others — Maintenance of Cabinet secrecy fundamental policy reason of quasi-constitutional nature for identification by Executive of documents generated in internal decision-making process which should not be disclosed — Review of elements of rule of law — Not basis for ignoring s. 39 — As to independence of judiciary, s. 39 not interfering with security of tenure, financial security, administrative independence of judges — Constitutional limitations on withdrawal of functions from courts in Constitution Act, 1867, s. 96, Charter, s. 11(d) not applicable.

Constitutional law — Charter of Rights — Criminal process — Charter, s. 11(d) guaranteeing right of accused to presumption of innocence until proven guilty according to law in fair, public hearing by independent, impartial tribunal — Issuance of certificate under Canada Evidence Act, s. 39 certifying document confidence of Queen’s Privy Council not integral to conduct of trial within contemplation of s. 11(d) — RCMP Public Complaints Commission inquiry into allegations of misconduct by RCMP members not trial of guilt.

Constitutional law — Distribution of powers — Constitution Act, 1867, s. 96 requiring Governor General to appoint judges of superior courts — Issuance of certificate under Canada Evidence Act, s. 39 certifying information confidence of Queen’s Privy Council not traditional, necessary function of superior court of kind contemplated in 1867, not within scope of s. 96.

Evidence — Canada Evidence Act, s. 39 providing where Clerk of Privy Council certifying in writing document confidence of Queen’s Privy Council, disclosure shall be refused without examination, hearing of information by court — Prima facie intra vires measure to define privileges of Executive — Fundamental unwritten principles of Constitution (independence of judiciary, rule of law, separation of powers) not constitutional imperative to contrary.

Judges and Courts — Canada Evidence Act, s. 39 providing where Clerk of Privy Council certifying in writing document confidence of Queen’s Privy Council, disclosure shall be refused without examination, hearing of information by court — S. 39 not interfering with security of tenure, financial security, administrative independence of judges — Not putting improper pressure on Judge as to outcome of given case, but form of privative clause.

Administrative law — Judicial review — Declarations — Canada Evidence Act, s. 39 providing where Clerk of Privy Council certifying in writing document confidence of Queen’s Privy Council, disclosure shall be refused without examination, hearing of information by court — Appellants arguing s. 39 should not apply because Parliament cannot authorize Executive to shield own conduct from constitutional scrutiny — Action for declaration as to constitutional invalidity of s. 39, not attack on Clerk’s decision — Latter should be raised by way of judicial review.

This was an appeal from a Trial Division judgment dismissing an action for a declaration that Canada Evidence Act, section 39 is unconstitutional. The appellants filed complaints with the RCMP Public Complaints Commission alleging misconduct by the RCMP in the treatment of demonstrators during the 1997 Asian Pacific Economic Cooperation (APEC) Conference in Vancouver. The Commission was appointed to inquire into all matters touching upon the complaints. The Chairman held that this included whether the Prime Minister or members of his Office or of the Privy Council Office or of the Government of Canada gave improper orders or directions to any RCMP members respecting security at the APEC Conference, and that the Commission could make findings and recommendations to this effect. A defence of superior orders was not raised. It was not disputed that there had been discussions between officials of the Prime Minister’s Office and the RCMP concerning security arrangements. The Commission requested that the Government of Canada disclose all government records relevant to the hearing. Two successive Clerks of the Privy Council filed certificates under Canada Evidence Act, subsection 39(1) certifying that information contained in certain documents constituted confidences of the Queen’s Privy Council for Canada. Section 39 provides that such documents shall not be disclosed and the Court is unable to examine them to determine whether the Clerk’s determination is correct or if the public interest warrants a refusal to disclose. The appellants commenced an action seeking a declaration that section 39 is unconstitutional and inconsistent with the “fundamental and organizing principles of the Constitution”. The Trial Division Judge concluded that section 39 is intra vires and that the so-called “fundamental and organizing principles of the Constitution”, to the extent that they may assist the courts in filling in gaps in the written Constitution, had no application. He rejected an alternative argument that, even if section 39 is valid, it cannot be validly applied so as to allow the Executive to conceal its own violation of the Constitution.

The issues were: (1) whether section 39 is ultra vires Parliament because of the fundamental, unwritten principles of the Canadian Constitution, namely the independence of the judiciary, the rule of law and the separation of powers; and (2) whether section 39 should be read down or otherwise rendered inapplicable in the circumstances.

Held, the appeal should be dismissed.

(1) (i) The appellants’ arguments were largely based on the premise that parliamentary sovereignty was not one of the principles of the Constitution, or at least ceased to be in 1982 when the Charter was adopted and section 52 of the Constitution Act, 1982 was enacted. (Section 52 provides that the Constitution is the supreme law of Canada.) The supremacy of the Constitution was established even before Confederation in 1867. Section 52 was necessary to avoid any uncertainty as to the continuing supremacy of the Constitution. Both before and after 1982 our system was, and is, one of parliamentary sovereignty exercisable within the limits of a written constitution, as evidenced by courts striking down laws for inconsistency with the division of powers set out in British North America Act, 1867, sections 91 and 92. These were solely quantitative limits on the exercise of legislative power prior to 1982. The adoption of the Charter in 1982 added a multitude of qualitative limitations on the exercise of power, but the Constitution of Canada was and is supreme over ordinary laws. Just as before 1982, the specific requirements of the Constitution must be examined to determine whether in a given case Parliament has infringed a constitutional limit (express or implied) on its power.

The appellants argued that section 39 was contrary to the common law and therefore implicitly unconstitutional. Under current common law a judge can examine a document to see if the claim that it was a Cabinet confidence was well-founded and if so, whether the public interest in its disclosure would outweigh the public interest in its continuing secrecy. Legislation cannot, however, be presumed unconstitutional simply because it alters the common law. The rationale for such legislation is to give an absolute assurance to members of Cabinet and their advisors that the classes of documents specified in section 39 will not even be subject to review by a judge for confidentiality, and therefore the continued secrecy of the document is assured. The common law was even more restrictive of disclosure until 1968 when, in Conway v. Rimmer, the House of Lords held that the Court could examine documents which were the subject of a minister’s claim for immunity, although a majority were of the view that Cabinet documents as a class should not be disclosed. At about this time, when the predecessor to section 39 was first enacted in Canada, it applied the principles of Conway v. Rimmer to most documents, but provided absolute immunity without examination by the Court for documents whose disclosure was claimed to be injurious to international relations, national defence or security, or to federal-provincial relations or as constituting a confidence of the Queen’s Privy Council. In 1982 the absolute claim for non-disclosure without examination by the Court was limited to confidences of the Queen’s Privy Council, which was defined for the first time and a time limit was placed on the continuation of that status. Prima facie, section 39 appears to be an intra vires measure by Parliament to define privileges of the federal Executive in the furtherance of the well-established and well-accepted principles of Cabinet secrecy. In the absence of some clear and compelling constitutional imperative to the contrary the legislation is valid and effective.

(ii) The appellants argued that there is a doctrine of separation of powers which prevents Parliament from giving judicial functions to the Executive. They characterized the issuance of a section 39 certificate by the Clerk of the Privy Council as judicial because it involves a determination of whether a court should have access to certain evidence. The appellants relied upon statements by the Supreme Court of Canada in the Judges Reference case that judicial independence flowed from the separation of powers, a doctrine which came from the preamble to the Constitution, which provides for a “constitution similar in Principle to that of the United Kingdom”. First, these comments were obiter dicta as that case was decided on the basis of Charter, paragraph 11(d). Secondly, the reference to a “constitution similar in Principle to that of the United Kingdom” was understood in 1867 to be a reference to an entrenchment of responsible government, i.e. where the Executive is responsible to the legislature. The very concept was the antithesis of separation of powers.

The certification of a fact which is binding on the courts because of the nature of the subject-matter is consistent with the traditional bounds of mutual respect owed by each “branch” of government to the others. There are fundamental policy reasons of a quasi-constitutional nature as to why the Executive (with the guidance of an Act of Parliament) should be able to identify those documents generated in its internal decision-making process which should not, to maintain the integrity of the system of Cabinet secrecy, be disclosed. If our system of government must conform to some concept of separation of powers, it should embrace this form of mutual respect among the various “branches” so as to reflect and enhance their respective roles.

(iii) The appellants maintained that government must not only be conducted in accordance with law, but that such law must never exclude the courts from the decision-making process of government. The elements of the rule of law are: that the law is supreme over the acts of both government and private persons (“one law for all”); that an actual order of positive laws be created and maintained to preserve “normative order”; and that “the exercise of all public power must find its ultimate source in the legal rule”. In other words, the “relationship between the state and the individual must be regulated by law”. Where section 39 is applied to preserve the immunity from disclosure of Cabinet documents, the situation is clearly regulated by law, namely section 39, being an Act of Parliament operating in its field of legislative authority. The rule of law is not a guarantee of the paramountcy of the common law. In fact the “actual order of positive laws” makes valid legislation paramount over the common law. The government is bound by the law, just as are private citizens. This does not mean that the law must produce the same results in respect of every citizen or institution in the country. The rule of law does not invalidate a statute which has the effect of allowing representatives of the Crown to identify certain documents as beyond disclosure: that is, the rule of law does not preclude a special law with a special result dealing with a special class of documents, which for long-standing reasons based on constitutional principles such as responsible government, have been treated differently from private documents in a commercial law suit. The rule of law is not, therefore, a basis for ignoring the provisions of section 39 of the Canada Evidence Act.

(iv) As to the independence of the judiciary, the appellants argued that any limitation on the jurisdiction of judicial bodies, precluding them in certain instances from engaging in the review of government decisions, is a violation of a constitutionally guaranteed independence of the judiciary. Section 39 does not interfere with the security of tenure, the financial security, or the administrative independence of judges. It is a public law applicable in a variety of circumstances, not for the purpose of interfering in a particular case before the Court. The invocation of section 39 does not put improper pressure on a judge as to the outcome of a given case: he or she is simply barred by Act of Parliament from making certain determinations. In fact, such a section is really another form of privative clause. Constitution Act, 1867, section 96 and Charter, paragraph 11(d) are the essential constitutional limitations on the assignment of certain functions to non-courts such as the Clerk of the Privy Council, thus withdrawing them from the courts. The issuance of such certificates are not a traditional and necessary function of a superior court of a kind contemplated in 1867 and thus within section 96. Nor is it integral to the conduct of a trial within the contemplation of paragraph 11(d): the proceeding before the Commission is not a trial of anyone’s guilt and if it were so considered then the Commission would not be constitutionally allowed to conduct it.

(2) The appellants argued that if section 39 is constitutionally valid, it should not apply because Parliament cannot authorize the Executive to shield its own conduct from constitutional scrutiny by employing section 39. But the statement of claim did not allege misconduct on the part of the Executive. Even if the Commission is a forum where unlawful conduct by the Executive may be relevant to the making of recommendations, the inquiry is concerned with the conduct of RCMP officers and not of the Executive. Any findings which might be made about the conduct of the Prime Minister’s Office or other members of the Executive will presumably be incidental to findings concerning conduct of the RCMP and cannot be legally determinative of whether such persons have done something constitutionally unlawful. Therefore the withholding of documents containing confidences pursuant to section 39 cannot prevent any definitive determination of constitutionally unlawful behaviour, which would have to be made by a court in an action brought for the purpose of obtaining redress for such behaviour, against those alleged to be guilty of it i.e. by way of judicial review of the Clerk’s certificate.

The consequences of accepting the appellants’ arguments would be that section 39 would not apply where there was the merest allegation that Cabinet documents might reveal policy or operating decisions arguably inconsistent with the rights of certain individuals. This would severely attenuate the absolute protection of Cabinet communications from disclosure which section 39 now affords. There is no basis upon which section 39 should be held to be inapplicable to the circumstances.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

British North America Act, 1867 (The), 30 & 31 Vict., c. 3 (U.K.) [R.S.C. 1970, Appendix II, No. 5], ss. 91, 92.

Canada Evidence Act, R.S.C., 1985, c. C-5, s. 39.

Canadian Bill of Rights, R.S.C., 1985, Appendix III.

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, 2(b), 7, 11(d).

Colonial Laws Validity Act, 1865, (U.K.), 28-29 Vict., c. 63, s. 2.

Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5], s. 96.

Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 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(2).

Proceedings against the Crown Act (The), R.S.S. 1965, c. 87, s. 5(7).

Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10, ss. 45.35 (as enacted by R.S.C., 1985 (2nd Supp.), c. 8, s. 16), 45.42 (as enacted idem), 45.43 (as enacted idem), 45.44 (as enacted idem), 45.45(14) (as enacted idem), 45.46(3) (as enacted idem).

Statute of Westminster, 1931, (U.K.), 22 Geo. V, c. 4 [R.S.C., 1985, Appendix II, No. 27], ss. 2, 7.

CASES JUDICIALLY CONSIDERED

APPLIED:

Canada (Auditor General) v. Canada (Minister of Energy Mines and Resources), [1989] 2 S.C.R. 49; (1989), 61 D.L.R. (4th) 604; 97 N.R. 241; Commission des droits de la personne v. Attorney General of Canada et al., [1982] 1 S.C.R. 215; (1982), 134 D.L.R. (3d) 17; 41 N.R. 318; Canada (Attorney General) v. Central Cartage Co., [1990] 2 F.C. 641 (1990), 71 D.L.R. (4th) 253; 45 Admin. L.R. 1; 109 N.R. 357 (C.A.); Bacon v. Saskatchewan Crop Insurance Corp., [1999] 11 W.W.R. 51 (Sask. C.A.); Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721; (1985), 19 D.L.R. (4th) 1; [1985] 4 W.W.R. 385; 35 Man. R. (2d) 83; 59 N.R. 321.

DISTINGUISHED:

Valente v. The Queen et al. [1985] 2 S.C.R. 673; (1985), 52 O.R. (2d) 779; 24 D.L.R. (4th) 161; 23 C.C.C. (3d) 193; 49 C.R. (3d) 97; 19 C.R.R. 354; 37 M.V.R. 9; 64 N.R. 1; 14 O.A.C. 79; B.C. Power Corporation v. B.C. Electric Company, [1962] S.C.R. 642; (1962), 34 D.L.R. (2d) 196; 38 W.W.R. 701; Amax Potash Ltd. et al. v. Government of Saskatchewan, [1977] 2 S.C.R. 576; (1976), 71 D.L.R. (3d) 1; [1976] 6 W.W.R. 61; 11 N.R. 222; Air Canada v. British Columbia (Attorney General), [1986] 2 S.C.R. 539; (1986), 32 D.L.R. (4th) 1; [1987] 1 W.W.R. 304; 8 B.C.L.R. (2d) 273; 22 Admin. L.R. 153; 72 N.R. 135; revg Air Canada v. British Columbia (1984), 10 D.L.R. (4th) 185; [1984] 3 W.W.R. 353; 51 B.C.L.R. 175 (S.C.).

CONSIDERED:

Reference re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3; (1997), 204 A.R. 1; 156 Nfld. & P.E.I.R. 1; 150 D.L.R. (4th) 577; [1997] 10 W.W.R. 417; 121 Man. R. (2d) 1; 49 Admin. L.R. (2d) 1; 118 C.C.C. (3d) 193; 11 C.P.C. (4th) 1; 217 N.R. 1; Reference re Secession of Quebec, [1998] 2 S.C.R. 217; (1998), 161 D.L.R. (4th) 385; 55 C.R.R. (2d) 1; 228 N.R. 203; 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; R. v. Mills, [1999] S.C.J. No. 68 (QL); Conway v. Rimmer, [1968] A.C. 910 (H.L.); Duncan v. Cammell, Laird & Co. Ld., [1942] A.C. 624 (H.L.); New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319; (1993), 118 N.S.R. (2d) 181; 100 D.L.R. (4th) 212; 327 A.P.R. 181; 13 C.R.R. (2d) 1; 146 N.R. 161; MacKeigan v. Hickman, [1989] 2 S.C.R. 796; (1989), 94 N.S.R. (2d) 1; 61 D.L.R. (4th) 688; 41 Admin. L.R. 236; 50 C.C.C. (3d) 449; 72 C.R. (3d) 129; 100 N.R. 81; RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; (1995), 127 D.L.R. (4th) 1; 100 C.C.C. (3d) 449; 62 C.P.R. (3d) 41.

REFERRED TO:

Dixon v. Canada (Governor in Council), [1997] 3 F.C. 169 (1997), 149 D.L.R. (4th) 269; 3 Admin. L.R. (3d) 306; 218 N.R. 139 (C.A.); Southam Inc. v. Canada (Attorney General), [1990] 3 F.C. 465 (1990), 73 D.L.R. (4th) 289; 1 C.R.R. (2d) 193; 114 N.R. 255 (C.A.); Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714; (1981), 123 D.L.R. (3d) 554; 37 N.R. 158; Canadian Assn. of Regulated Importers v. Canada (Attorney General), [1992] 2 F.C. 130 (1991), 87 D.L.R. (4th) 730; 135 N.R. 217 (C.A.); Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System), [1997] 3 S.C.R. 440; (1997), 151 D.L.R. (4th) 1; 48 Admin. L.R. (2d) 1; 216 N.R. 321.

AUTHORS CITED

Hogg, Peter W. Constitutional Law of Canada, loose-leaf ed., Toronto: Carswell, 1992.

Montesquieu, Charles de Secondat (Baron). De l’esprit des lois, Paris: H. Bossange, 1827.

Moore, Christopher. 1867—How the Fathers Made a Deal. Toronto: M&S, 1997.

APPEAL from a F.C.T.D. judgment dismissing an action for a declaration that Canada Evidence Act, section 39 is unconstitutional (Singh v. Canada (Attorney General), [1999] 4 F.C. 583(T.D.)). Appeal dismissed.

APPEARANCES:

Joseph J. Arvay, Q.C. for appellants.

Ivan G. Whitehall, Q.C. and Simon Fothergill for respondents.

Barbara L. Fisher for intervener RCMP Public Complaints Commission.

SOLICITORS OF RECORD:

Arvay Finlay, Victoria, for appellants.

Deputy Attorney General of Canada for respondents.

Blake, Cassels & Graydon, Vancouver, for intervener RCMP Public Complaints Commission.

The following are the reasons for judgment rendered in English by

Strayer J.A.:

Introduction

[1]        This is an appeal from a decision of McKeown J. [[1999] 4 F.C. 583(T.D.)] in which he dismissed the appellants’ action for a declaration that section 39 of the Canada Evidence Act[1] is unconstitutional.

Facts

[2]        In November 1997 an Asian Pacific Economic Cooperation Conference (APEC Conference) was held in Vancouver, attended by heads of government of Pacific rim countries. The appellants, among others, were involved in demonstrations on the occasion of travel around Vancouver by the respective heads of government. Subsequently approximately 52 complainants, including the appellants, filed complaints with the Royal Canadian Mounted Police Public Complaints Commission (the Commission) alleging various forms of misconduct by personnel of the Royal Canadian Mounted Police (the RCMP).

[3]        The Commission is established under the Royal Canadian Mounted Police Act.[2] The nature of its jurisdiction may be seen in section 45.35 which reads in part as follows:

45.35 (1) Any member of the public having a complaint concerning the conduct, in the performance of any duty or function under this Act, of any member or other person appointed or employed under the authority of this Act may, whether or not that member of the public is affected by the subject-matter of the complaint, make the complaint to

(a) the Commission;

The Commission is empowered to hold hearings and has the necessary powers to summon witnesses.[3] On completion of the hearing, the Commission is to send to the Minister and the RCMP Commissioner an interim report “setting out such findings and recommendations with respect to the complaint as the Commission sees fit”.[4] After the RCMP Commissioner has stated in writing how he intends to respond to the report, the Commission Chairman is to make a final report to the Minister (the Solicitor General of Canada), the Commissioner and the parties, “setting out such findings and recommendations with respect to the complaint as the Commission Chairman sees fit”.[5]

[4]        After the resignation of the first panel appointed by the Chair of the Commission to hear these complaints, she appointed Mr. E. N. Hughes, Q.C. as a member of the Commission to conduct this hearing. His terms of reference are to:

… inquire into all matters touching upon these complaints, to hear all evidence relevant thereto, to ensure a full and fair hearing in respect of these complaints and to report at the conclusion of the hearing such findings of fact and recommendations as are warranted, and, without limiting the generality of the foregoing, to inquire into and to report on:

(a)  the events that took place during, or in connection with, demonstrations during the Asia Pacific Economic Cooperation (“APEC”) Conference in Vancouver, B.C. between November 23 and 27, 1997 on or near the UBC Campus and subsequently at the UBC and Richmond Detachments of the RCMP;

(b)  whether the conduct of members of the RCMP involved in the events was appropriate to the circumstances;

(c)  whether the conduct of members of the RCMP involved in the events was consistent with respect for the Fundamental Freedoms guaranteed by section 2 of the Canadian Charter of Rights and Freedoms.[6]

In a sitting of the Commission on March 5, 1999 Mr. Hughes observed, after quoting these terms of reference:

Central to this inquiry is the conduct of those members of the Force who are the subject of one or more of the complaints. That is the purpose, function and raison d’être for this proceeding. The consequences for a member of the Force, whose conduct, if found to have been inappropriate in the circumstances or inconsistent with respect for the Fundamental Freedoms guaranteed by section 2 of the Canadian Charter of Rights and Freedoms, can be devastating indeed, given the disciplinary procedures within the Force that could be triggered by such a finding.[7]

Quoting various statements by certain complainants and their counsel he observed:

… I sense an overriding desire on the part of some to play out some other agenda which in turn has resulted in a glossing over in some minds of what is my fundamental duty in this matter.[8]

He was, however, asked to make declarations that the Commission has the jurisdiction to investigate whether the Prime Minister or members of his Office or of the Privy Council Office or of the Government of Canada gave improper orders or directions to any members of the RCMP respecting security at the APEC Conference, that it has jurisdiction to make findings to this effect, and that it has the jurisdiction to make recommendations to the Commissioner of the RCMP concerning political interference in RCMP operations by the persons referred to above. He stated in response that he could so inquire, could make such findings and such recommendations, “if the evidence is supportive of me doing so”.[9] This ruling is not in dispute before us. Counsel did confirm to us that the members of the RCMP who are the objects of complaints within the ambit of section 45.35 of the RCMP Act have not suggested any defence of superior orders. It is no longer in dispute that there were discussions between officials of the Prime Minister’s Office and personnel of the RCMP concerning security arrangements. It is the position of the Attorney General of Canada, however, that these did not constitute instructions to, or interference with, the RCMP in the conduct of their security functions at the APEC Conference. It is obviously the position of some or all of the complainants that there was such direction and interference from political sources which had the effect of causing the RCMP to infringe their Charter [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]] rights. The hearings continue.

[5]        On April 8, 1998 counsel for the Commission wrote to counsel for the government requesting that the Government of Canada disclose to the panel all government records relevant to the hearing. In partial response to this, two successive clerks of the Privy Council have filed certificates under subsection 39(1) of the Canada Evidence Act[10] certifying that the information contained in certain documents constitutes confidences of the Queen’s Privy Council for Canada. By the provisions of section 39 this means that the documents shall not be disclosed and the Court is unable to examine them to determine if the Clerk’s determination is correct or if the public interest warrants a refusal to disclose. Section 39 provides as follows:

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 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 restricting 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;

(c) an agendum of Council or a record recording deliberations or decisions of Council;

(d) 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;

(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 paragraph (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 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.

[6]        It appears that the Commission counsel who originally requested these documents has taken no further proceeding to obtain them. However the present appellants commenced this action on April 13, 1999 seeking a declaration that section 39 of the Canada Evidence Act is inconsistent with paragraph 2(b) and section 7 of the Canadian Charter of Rights and Freedoms and not justifiable under section 1 thereof; and a declaration that section 39 is inconsistent with the preamble to the Constitution Act, 1867 [30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5]] and the “fundamental and organizing principles of the Constitution” and is beyond the powers of Parliament. By reasons dated June 25, 1999 McKeown J. dismissed the action. He concluded that section 39 is intra vires of Parliament and he could identify no Charter violation. He further found that the so-called “fundamental and organizing principles of the Constitution”, to the extent that they may assist the courts in filling in “gaps” in the written Constitution, had no application to this issue. He further dismissed an alternative argument raised at trial by the plaintiffs to the effect that even if section 39 is not per se invalid it could not validly be applied so as to allow the executive branch of government to conceal its own violation of the Constitution. He noted that the plaintiffs have not established any violation of the Constitution in the sense of section 39 being an invalid law (if the gravamen of the plaintiffs’ case is that the executive was relying on an invalid law which prevents disclosure of documents). He also was of the view that there is no evidence to indicate that the exercise by the Clerk of the power under section 39 was arbitrary or malicious (if the gravamen of the plaintiffs’ case is that the decision to issue the certificate was not made on proper grounds).

[7]        The appellants appeal from that decision on the ground that the Trial Judge should have found that section 39 of the Canada Evidence Act is ultra vires Parliament because of the “fundamental, unwritten principles of the Canadian Constitution”: namely, the independence of the judiciary, the rule of law, and the separation of powers. They also argue in the alternative that the Trial Judge should have read down section 39 so as not to apply in the circumstances of this case, those circumstances being that the Executive allegedly acted unconstitutionally in directing the police to infringe the Charter rights of the complainants appearing before the Commission, and that such unconstitutional conduct would be disclosed by the documents now sought whose disclosure is prevented by section 39 of the Canada Evidence Act . The appellants thus assert a principle that section 39 cannot be constitutionally applied by the Executive so as to prevent the disclosure to the Commission of evidence of its own unconstitutional conduct.

[8]        At the hearing of the appeal the appellants did not argue that section 39 is contrary to the Charter.

[9]        At the opening of the hearing before us the appellants applied to introduce new evidence, largely consisting of transcripts of conversations among RCMP personnel in which reference is made to the views, or presumed views, of personnel of the Prime Minister’s Office. Such evidence, which had only become available in this form at the end of September 1999, consisted for the most part of hearsay. The Court refused to receive the new evidence in that it lacked intrinsic probative value and that, in any event, it did not meet the criterion for the admission of new evidence that it be practically determinative of the matter before the Court. The Court in this appeal is not called upon to determine the truth—now much disputed in hearings before the Commission—as to what the personnel of the RCMP did in relation to the APEC Conference and why they did it.

Issues

[10]      The issues are as follows:

(1) Is section 39 of the Canada Evidence Act ultra vires Parliament because of the “fundamental, unwritten principles of the Canadian Constitution [which] … include the independence of the judiciary, the rule of law and the separation of powers”?

(2) Should section 39 be read down or otherwise rendered inapplicable in the circumstances of this case?

Analysis

[11]      I wish to make clear at the outset that I am in general agreement with the conclusions of the learned Trial Judge and find in his decision no reviewable error. I only wish to elaborate on certain aspects of the matter. I also would observe that the appellants have made a strong argument against the policy embodied in subsection 39(1) of the Canada Evidence Act, preventing as it does the review by courts of the executive’s characterization of particular documents as containing confidences of the Queen’s Privy Council for Canada. That policy treats Cabinet confidences as a class of documents which can only be disclosed in circumstances permitted by the Canada Evidence Act. Further, it prevents a court from determining for itself whether such documents are in fact Cabinet confidences. The appellants argue for a policy by which there would be no immunity as a class for this type of document: instead a court should be able to examine them to determine if they are of that class and, if so, whether on balance they should be disclosed anyway. But it is not for the Court to determine the wisdom of the policy embodied in the Canada Evidence Act if it breaches no constitutional requirement.

A.        Validity of Section 39 of the Canada Evidence Act

[12]      The appellants focussed their arguments on the invocation of so-called “fundamental, unwritten principles” of the Constitution which they largely derive from general comments made in the Supreme Court in two reference cases: namely, Reference Re Remuneration of Judges of the Provincial Court (P.E.I.)[11] and Reference re Secession of Quebec.[12] The observations in these cases are of a general nature. Furthermore, both references dealt with matters not specifically dealt with in the Constitution and not subject to a well-established jurisprudence. I do not interpret them as having put an end to another constitutional principle, namely the supremacy of Parliament or the supremacy of legislatures when acting in their own domain. I will turn to this principle of the Constitution first and then deal with those invoked by the appellants.

(i)         Parliamentary Sovereignty

[13]      In Canada (Auditor General) v. Canada (Minister of Energy Mines and Resources),[13] a case where the Supreme Court of Canada declined to order the Executive to produce documents sought by the Auditor General, Chief Justice Dickson said:

The grundnorm with which the courts must work in this context is that of the sovereignty of Parliament. The ministers of the Crown hold office with the grace of the House of Commons and any position taken by the majority must be taken to reflect the sovereign will of Parliament. Where Parliament has indicated in the Auditor General Act that it wishes its own servant to report to it on denials of access to information needed to carry out his functions on Parliament’s behalf, it would not be appropriate for this Court to consider granting remedies for such denials, if they, in fact, exist.

[14]      It appears that the appellants’ arguments are largely based on the premise that parliamentary sovereignty is not one of the principles of the Constitution, or at least ceased to be at some time around 1982 when the Charter was adopted and 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]] was enacted. They explicitly relied on the argument before the Trial Division on a statement by the Supreme Court in the Quebec Secession Reference as follows:

The constitutionalism principle bears considerable similarity to the rule of law, although they are not identical. The essence of constitutionalism in Canada is embodied in s. 52(1) of the Constitution Act, 1982, which provides that “[t]he Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.” Simply put, the constitutionalism principle requires that all government action comply with the Constitution. The rule of law principle requires that all government action must comply with the law, including the Constitution. This Court has noted on several occasions that with the adoption of the Charter, the Canadian system of government was transformed to a significant extent from a system of Parliamentary supremacy to one of constitutional supremacy. The Constitution binds all governments, both federal and provincial, including the executive branch (Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, at p. 455). They may not transgress its provisions: indeed their sole claim to exercise lawful authority rests in the powers allocated to them under the Constitution, and can come from no other source.[14]

[15]      It is uncertain what significance should be given to this statement, since the supremacy of the Constitution was established well before 1982 and even before Confederation in 1867. Canada recognized the British Parliament as the proper authority for enactment of our Constitution down to and including 1982 when section 52 of the Constitution Act, 1982 was adopted. It was a legal doctrine of the British Empire that imperial laws (that is, enactments of Westminster) applying to a colony were supreme over colonial laws. This position was codified by statute, the Colonial Laws Validity Act, 1865,[15] section 2 of which provided that:

2. Any colonial law, which is or shall be repugnant to the provisions of any Act of Parliament extending to the colony to which such laws may relate … shall be read subject to such Act … and shall, to the extent of such repugnancy, but not otherwise, be and remain absolutely void and inoperative.

The British North America Act, 1867 [30 & 31 Vict., c. 3 (U.K.) [R.S.C. 1970, Appendix II, No. 5]], was an imperial law extending to the colony of Canada and its supremacy was thus assured as long as Westminster was the recognized legislative authority for Canada in constitutional matters. While ordinary Canadian laws were freed from the application of the Colonial Laws Validity Act, 1865, and thus from the paramountcy of British laws, by the Statute of Westminster, 1931,[16] the latter statute preserved the supremacy in Canada of the B.N.A. Acts over local laws. It is no accident that a new supremacy clause was inserted in subsection 52(1) of the Constitution Act, 1982. Subsection 52(2) of that Act partially defines the Constitution of Canada to include the legislation listed in the Schedule to the Act. The Colonial Laws Validity Act, 1865 is not so listed. To avoid any uncertainty as to the continuing supremacy of the Constitution it was therefore necessary to insert subsection 52(1) to provide that:

52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

[16]      If indeed before 1982 the Constitution of Canada, then consisting of the B.N.A. Acts and certain other provisions, was not supreme over federal and provincial laws, it is difficult to understand on what basis our courts, including the Supreme Court of Canada, had ever since Confederation exercised the jurisdiction to strike down such Canadian laws for inconsistency with the division of powers set out in sections 91 and 92 of the B.N.A. Act, 1867. Both before and after 1982 our system was and is one of parliamentary sovereignty exercisable within the limits of a written constitution. These were solely quantitative limits on the exercise of legislative power prior to 1982. It is true that the adoption of the Charter in 1982 added a multitude of qualitative limitations on the exercise of power but it is difficult to ascertain any change in the principle that the Constitution of Canada was and is supreme over ordinary laws. As a result one is driven as before 1982 to looking at the specific requirements of the Constitution to determine whether in a given case Parliament has infringed a constitutional limit (express or implied) on its power.

[17]      Prima facie the Parliament of Canada in enacting section 39 is dealing with a matter intrinsically within federal jurisdiction, namely the degree to which traditional federal Crown immunities in litigation are to be modified and the extent to which disclosure of confidential documents is to be justiciable. As Chief Justice Dickson said in the Auditor General case:[17]

In the realm of Charter adjudication, s. 1 is “the uniquely Canadian mechanism through which the courts are to determine the justiciability of particular issues that come before it” (Wilson J. in Operation Dismantle, supra, at p. 491). Ultimately, the courts are constitutionally charged with drawing the boundaries of justiciability, except as qualified by s. 33. By way of contrast, in the residual area reserved for the principle of Parliamentary sovereignty in Canadian constitutional law, it is Parliament and the legislatures, not the courts, that have ultimate constitutional authority to draw the boundaries. It is the prerogative of a sovereign Parliament to make its intention known as to the role the courts are to play in interpreting, applying and enforcing its statutes. While the courts must determine the meaning of statutory provisions, they do so in the name of seeking out the intention or sovereign will of Parliament, however purposively, contextually or policy-oriented may be the interpretative methods used to attribute such meaning. If, then, the courts interpret a particular provision as having the effect of ousting judicial remedies for entitlements contained in that statute, they are, in principle, giving effect to Parliament’s view of the justiciability of those rights. The rights are non-justiciable not because of the independent evaluation by the court of the appropriateness of its intervention, but because Parliament is taken to have expressed its intention that they be non-justiciable.

The just-stated view sits comfortably with the occasions on which the courts give effect to so-called privative clauses that explicitly oust judicial review. As a constitutional matter, it is not appropriate for the court to intervene by virtue of the simple fact that Parliament has directed that they must not. [Emphasis added.]

More specifically, the Supreme Court in Commission des droits de la personne v. Attorney General of Canada et al. upheld subsection 41(2) of the Federal Court Act [R.S.C. 1970 (2nd Supp.), c. 10], a predecessor to section 39 of the Canada Evidence Act, which in fact provided a broader absolute class immunity covering not only confidences of the Queen’s Privy Council but also matters certified to be injurious to international relations, national defence or security, or to federal-provincial relations. If certified to concern such matters, documents could not be disclosed and no court could examine them. The Court found that such legislation did not, even in the circumstances of that case involving a demand for documents by a provincially-appointed commission, amount to an interference with provincial areas of jurisdiction. It found that federal Crown privilege is part of federal public law on which Parliament may legislate. The possibility that there might be abuse in the administration of such a law in no way affected Parliament’s power to legislate.[18] Speaking of this risk the Court said [at page 228]:

Once Parliament and the provincial legislatures are admitted to have the power to legislate on this matter in their respective fields (and the power cannot be denied), the risk exists. However, the risk that the Executive will apply legislation that has been validly adopted by Parliament with malice or even arbitrarily does not have the effect of divesting Parliament of its power to legislate. It is important not to confuse the statute adopted by Parliament with the action of the Executive performed in accordance with that statute.

Once it is admitted that Parliament and the provincial legislatures have the power to legislate, it necessarily follows that they can make the privilege absolute. In my view, saying that Parliament and, the legislatures cannot make the privilege absolute amounts to a denial of parliamentary supremacy, and to denying Parliament and the legislatures their sovereign power to legislate in their respective fields of jurisdiction. [Emphasis added.]

[18]      This Court has recognized the validity of a predecessor of section 39 and rejected attacks on it based on the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights [R.S.C., 1985, Appendix III]. Chief Justice Iacobucci (as he then was) said that such a provision:

… 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.

He thus held that it did not represent an impermissible limitation to a “fair hearing”.[19]

[19]      Therefore the principle seems well established that such legislation is clearly within the legislative power of Parliament and the exercise of its supremacy, absent any clear constitutional limitation to the contrary.

[20]      The appellants argue, however, that such legislation is contrary to the common law and therefore somehow implicitly unconstitutional. It is true that the provision in question is not the same as current common law on this subject: in the face of such a claim to a Cabinet confidence, modern case law would permit a judge to examine the document to see if the claim is well-founded and if so, whether the public interest in its disclosure would outweigh the public interest in its continuing secrecy. (It does not, it should be emphasized, guarantee disclosure of such documents but leaves that decision to the Court.) But even in Carey v. Ontario where the Supreme Court held this to be the law, absent legislation, La Forest J. writing for the Court qualified his concern about an absolute claim to immunity as follows:

… I would agree that the business of government is sufficiently difficult that those charged with the responsibility for running the country should not be put in a position where they might be subject to harassment making Cabinet government unmanageable. What I would quarrel with is the absolute character of the protection accorded their deliberations or policy formulation without regard to subject matter, to whether they are contemporary or no longer of public interest, or to the importance of their revelation for the purpose of litigation. Subsequent cases have addressed these issues.[20]

Thus he contemplated the possibility that legislation might limit the absolute privilege to certain kinds of documents or for certain time periods only (as does section 39 of the Canada Evidence Act) and he recognized elsewhere that it is for Parliament to define the extent of the privilege if it so chooses.[21] Most recently the Supreme Court in R. v. Mills[22] has confirmed that legislation cannot be presumed unconstitutional simply because it alters the common law.

[21]      The rationale for legislation of this type is obvious. I need not add to the literature on the importance, to our system of government, of secrecy of Cabinet deliberations. This legislation, of course, gives an absolute assurance to members of Cabinet and their advisors that the classes of documents specified in section 39 will not even be subject to review by a judge for confidentiality, and therefore it puts beyond doubt the continued secrecy of the document.

[22]      It is in any event an oversimplification to characterize this legislation as a drastic impairment of common law rights. In fact the common law, until revised by the House of Lords in 1968[23] was more restrictive of disclosure: the House of Lords in Duncan v. Cammell, Laird& Co. Ltd.[24] held that an affidavit of a minister stating that disclosure of documents would be injurious to the public interest would be accepted by the courts as conclusive without examination of the documents themselves. While the House of Lords seemingly reversed itself in 1968 in Conway v. Rimmer by holding that the Court could examine documents which were the subject of a minister’s claim for immunity, a majority were of the view that Cabinet documents as a class should not be disclosed.[25] There was no limitation suggested, for example, as to how old the document could be before the Executive was unable to claim the privilege. At about this time the predecessor legislation to section 39 was first enacted in Canada. While it applied the principles of Conway v. Rimmer to most documents it provided absolute immunity without examination by the Court for documents whose disclosure was claimed to be injurious to international relations, national defence or security, or to federal-provincial relations or constituting a confidence of the Queen’s Privy Council. In 1982 that position was modified so as to limit the absolute claim for non-disclosure, without examination by the Court, to confidences of the Queen’s Privy Council. In mitigation of the denial of a right of review by the Court, however, for the first time there was a statutory definition adopted of “a confidence of the Queen’s Privy Council for Canada”, and, again for the first time, a time limit was placed on the continuation of that status. The general rule is that such confidences are protected for only 20 years. In the case of discussion papers, where they have led to a decision that has been made public they need no longer be kept secret. The same applies to many discussion papers where decisions have not been made public, if four years have elapsed since the paper was prepared. That result is that a minister or the Clerk of the Privy Council is precisely limited as to what documents he or she can characterize as confidences of the Queen’s Privy Council and the period for which documents are free from disclosure without court examination is defined.

[23]      Prima facie, then, this appears to be an intra vires measure by Parliament to define privileges of the federal Executive in the furtherance of the well-established and well-accepted principles of Cabinet secrecy. In the absence of some clear and compelling constitutional imperative to the contrary the legislation is valid and effective.

[24]      I shall now turn to the alleged “fundamental, unwritten principles” of the Canadian Constitution upon which the appellants rely to invalidate this legislation: namely, the separation of powers, the rule of law, and the independence of the judiciary.

(ii)        Separation of Powers

[25]      The appellants argue that there is a doctrine of separation of powers which prevents Parliament from giving judicial functions to the Executive. They characterize the issuance of a section 39 certificate by the Clerk of the Privy Council as judicial in nature because it involves a determination of whether a court should have access to certain evidence.

[26]      The appellants rely essentially on statements by the Supreme Court of Canada in Reference re Remuneration of Judges of the Provincial Court (P.E.I.) (Judges Reference).[26] It is true in that case that Chief Justice Lamer writing for the majority said that judicial independence

… flows as a consequence of the separation of powers, because these appeals concern the proper constitutional relationship among the three branches of government in the context of judicial remuneration ….[27]

He found this doctrine of separation of powers to come from the preamble to the Constitution which provides for “a constitution similar in Principle to that of the United Kingdom”.

[27]      First it should be observed that these comments concurred in by five other judges in the Judges Reference were obiter dicta as the case was decided on the basis of paragraph 11(d) of the Charter.

[28]      Secondly it seems difficult to treat the so-called doctrine of separation of powers as prescriptive rather than (loosely) descriptive. If indeed it has its origins in the preamble it is difficult to reconcile the doctrine with the principles of the Constitution of the United Kingdom where, for example, the Lord Chancellor is head of the judiciary, a member of Cabinet, and Speaker of the upper house of Parliament; and where, (similarly to Canada) the Executive is subject to control by the legislature and where members of the Executive are required by convention to be members of the legislative branch of government as well.[28] It is generally believed that the notion that the United Kingdom had a strict separation of powers derived from the erroneous observations of Baron Montesquieu in his 18th century work De l’Esprit des Lois. His observations, while wrong, nevertheless had considerable influence in the drafting of the U.S. Constitution where a true separation of powers is prescribed. In fact, the preambular reference to a “constitution similar in Principle to that of the United Kingdom” had its origin in Resolution 4 of the Quebec Resolutions of 1864 and was understood at that time to be an entrenchment of responsible government, that is, a system where the Executive would be responsible to the legislature.[29] The very concept was the antithesis of separation of powers. There are many other examples of the mixing of functions among the various branches of government, the most obvious being the statutory power of the Supreme Court of Canada to give advisory opinions, a function not countenanced in systems of true separation of powers such as the United States. In the Quebec Secession Reference the Court unanimously confirmed its right to perform this function as follows:

Moreover, the Canadian Constitution does not insist on a strict separation of powers. Parliament and the provincial legislatures may properly confer other legal functions on the courts, and may confer certain judicial functions on bodies that are not courts. The exception to this rule relates only to s. 96 courts. Thus, even though the rendering of advisory opinions is quite clearly done outside the framework of adversarial litigation, and such opinions are traditionally obtained by the executive from the law officers of the Crown, there is no constitutional bar to this Court’s receipt of jurisdiction to undertake such an advisory role.[30] [Emphasis added.]

It is not surprising that the Court reached this conclusion, as it was there engaged in a celebrated exercise of advising the Executive, answering several hypothetical questions posed by the Governor in Council in the absence of any real “case or controversy” in the legal sense (the criterion in the U.S. for the exercise of judicial power).

[29]      In the present context it is difficult to see how, even on the basis of the separation of powers, the refusal of one branch of the Executive, the Privy Council Office, to give to another branch of the Executive,[31] the Royal Canadian Mounted Police Public Complaints Commission, both governed by the laws of Parliament, access to certain Cabinet information, can be seen to be a violation of the separation of powers. The appellants argue, however, that for Parliament to deny this Court the right to look at the documents, because the Clerk of the Privy Council has pronounced them to be within section 39, is an illicit conferral of judicial authority on the Clerk of the Privy Council. Why such a determination by the Clerk of the Privy Council is necessarily judicial is not entirely clear. It is the certification of a fact which in effect is binding on the courts because of the particular nature of the subject-matter, just as would be, for example, a certificate from the Secretary of State for Foreign Affairs as to which government is recognized by Canada as the Government of China. This function appears to me to be consistent with the traditional bounds of mutual respect owed by each “branch” of government to the others. For example in New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly)[32] the Supreme Court held that the exercise of inherent privileges of a provincial legislature were not subject to review by the Court under the Charter. In MacKeigan v. Hickman[33] it was held that other branches of government could not compel a judge to testify as to how and why he or she arrived at the conclusions reached in a judgment. It is therefore not particularly surprising that courts, at least when prevented by Act of Parliament from doing so, should refrain from compelling evidence on how and why the Executive Branch made certain policy decisions and what those decisions were. Just as there are fundamental policy reasons of a quasi-constitutional nature as to why legislators should have full control of their procedures and judges should not have to reveal the processes by which they reach a given decision, so the Executive (with the guidance of an Act of Parliament) should be able to identify those documents generated in its internal decision-making process which should not, for the integrity of the system of Cabinet secrecy, be disclosed.

[30]      If our system of government must conform to some concept of separation of powers, it should embrace this form of mutual respect among the various “branches” so as to reflect and enhance their respective roles.

[31]      As McLachlin J. wrote in the New Brunswick Broadcasting case:

Our democratic government consists of several branches: the Crown, as represented by the Governor General and the provincial counterparts of that office; the legislative body; the executive; and the courts. It is fundamental to the working of government as a whole that all these parts play their proper role. It is equally fundamental that no one of them overstep its bounds, that each show proper deference for the legitimate sphere of activity of the other.[34]

(iii)       The Rule of Law

[32]      The appellants have somewhat mixed this fundamental principle with that of the independence of the judiciary. What they really maintain is that government must not only be conducted in accordance with law, but that such law must never exclude the courts from the decision-making process of government. To avoid confusion I think it best to keep the concepts separate in the interest of clear analysis.

[33]      Advocates tend to read into the principle of the rule of law anything which supports their particular view of what the law should be. A recent pronouncement by the Supreme Court of Canada in the Quebec Secession Reference, reiterated with approval its description of the rule of law in Reference re Manitoba Language Rights.[35] In summary the Court there confirmed the elements of the rule of law to be: that the law is supreme over the acts of both government and private persons (“one law for all”); that an actual order of positive laws be created and maintained to preserve “normative order”; and that “the exercise of all public power must find its ultimate source in the legal rule”. As they said, put another way, “the relationship between the state and the individual must be regulated by law”.

[34]      As the learned Trial Judge has held, this is precisely the situation where section 39 of the Canada Evidence Act is applied to preserve the immunity from disclosure of Cabinet documents. The situation is clearly regulated by law, namely section 39, being an Act of Parliament operating in what has been held to be its field of legislative authority. The rule of law is not the equivalent of a guarantee of the paramountcy of the common law (which itself has mutated on this subject of immunity in recent decades). In fact the “actual order of positive laws” in our system makes valid legislation paramount over the common law. That the government is bound by the law, just as are private citizens, is not in dispute here. This does not mean that the law must produce the same results in respect of every citizen or institution in the country: differently situated persons and public bodies require different treatment and it is part of the art and science of law making, both by legislatures and courts, to fashion a content of laws appropriate to the different persons and bodies they regulate. All of this must now, of course, be done within the confines of section 15 of the Charter which is not in issue before us.

[35]      In this respect I agree with McKeown J. when he cited with approval the recent decision of the Saskatchewan Court of Appeal in Bacon v. Saskatchewan Crop Insurance Corp.[36] There a government agency which operated a crop insurance program had changed the terms of that program. Although it considered such changes to be within the contemplation of the original contract made with farmers, this was contested in the courts. As a result the legislature of Saskatchewan adopted legislation to alter the terms of the program and provided that no action or proceeding would lie against the Crown or a Crown agent with respect to the legislative amendments to the original contracts of crop insurance. It also prohibited a court from considering any argument that notice was required before such contracts were changed. In attacking this legislation in court the representatives of farmers registered under the original program argued that the legislation was invalid as contrary to the rule of law. They largely relied on statements made by the Supreme Court of Canada in the Quebec Secession Reference[37] where it referred to the requirement of the rule of law that the law be supreme over the acts of both government and private persons, that is, “one law for all”. On this basis it was argued that the government has no more right to avoid its contractual obligations than does a private person. Having regard to much jurisprudence of the Supreme Court and of the Judicial Committee of the Privy Council upholding laws which did affect contractual rights, Wakeling J.A. writing for the Court stated:

The observation of the Supreme Court (para. 78) that the rule of the law and the constitution are not in conflict is a compelling statement. It is a statement made in 1998 with full knowledge that on many occasions over the preceding years Parliament has passed and relied upon legislation restricting or eliminating contractual and property rights which would otherwise have been available. Since the Supreme Court does not find this historical background to constitute a conflict with the rule of law, it must of necessity indicate they accept that legislation constitutes an important source of the laws which rule us and the sole restriction on that right to legislate is contained in the relevant Constitution.

I am unable to accept that these justices of the Supreme Court, whilst providing an analysis of our federal system, were at the same time engaged in changing that system. That is particularly so when we are not talking of a subtle or marginal change, but one which would reduce the supremacy of Parliament by subjecting it to the scrutiny of superior court judges to be sure it did not offend the rule of law and if it did, to determine whether it was an arbitrary action. If the Supreme Court of Canada meant to embrace such a doctrine, I would expect it would see the need to say so very clearly in a case where that was the issue before them. This is particularly so when they are not only cognizant of the many cases in various jurisdictions acknowledging the supremacy of Parliament, but must also be aware of their own previous judgments which have endorsed that principle such as: P.S.A.C. v. Canada, [1987] 1 S.C.R. 424 (S.C.C.), Reference re Canada Assistance Plan (Canada), [1991] 2 S.C.R. 525 (S.C.C.), Esquimalt & Nanaimo Railway v. British Columbia (Attorney General) (1949), [1950] A.C. 87 (British Columbia P.C.). Furthermore, I am unable to accept that when the justices were laying a foundation for their decisions in the Secession case by reviewing the historical and legal development of federalism in this country, that they were also engaged in changing that foundation. If that were so, it would surely not be done in such a subtle manner as to be questionable whether it had happened at all.

I respectfully agree with these observations.

[36]      I therefore agree with the Trial Judge that the rule of law cannot be taken to invalidate a statute which has the effect of allowing representatives of the Crown to identify certain documents as beyond disclosure: that is, the rule of law does not preclude a special law with a special result dealing with a special class of documents which, for long standing reasons based on constitutional principles such as responsible government, have been treated differently from private documents in a commercial law suit.

[37]      I therefore conclude that the rule of law is not a basis for ignoring the provisions of section 39 of the Canada Evidence Act.

(iv)       Independence of the Judiciary

[38]      This principle is invoked by the appellants intermittently in association with the separation of powers and with the rule of law. As I understand their proposition, it is that section 39 is beyond the powers of Parliament because it prevents either the Commission or this Court from looking at the documents covered by the certificate of the Clerk of the Privy Council. Essentially their position is that any limitation on the jurisdiction of judicial bodies, precluding them in certain instances from engaging in the review of government decisions, is a violation of a constitutionally guaranteed independence of the judiciary.

[39]      The Trial Judge, correctly I believe, held that this did not constitute an interference with independence as measured by the now well-established rules in Valente v. The Queen et al.[38] Section 39 in no way interferes with the security of tenure, the financial security, or the administrative independence of judges as dealt with in that case. Section 39 is a public law enacted by Parliament applicable in a variety of circumstances, not for the purposes of interfering in a particular case before the Court. While it is generally assumed to be invoked in aid of the government’s position in litigation, it is quite conceivable that it would be invoked in a manner which might be contrary to the government’s interests: for example, where the Clerk of the Privy Council is obliged to keep confidential the Cabinet documents of a previous administration and to certify them in order to preclude their production in a case where the government of the day might gain advantage from their disclosure. Or, as was pointed out by La Forest J. in RJR-MacDonald Inc v. Canada (Attorney General),[39] invocation of section 39 in furtherance of Cabinet secrecy may compromise the ability of the government in litigation to justify, for the purposes of section 1 of the Charter, its choice of legislative measure. None of this can be seen as putting improper pressure on a judge as to the outcome of a given case before him: he or she is simply barred by Act of Parliament from making certain determinations.

[40]      In fact such a section is really another form of privative clause with which the judicial system has long been familiar. It is accepted that legislated privative clauses can preclude courts from reviewing findings of fact by a tribunal where such fact finding is done within its jurisdiction. As was pointed out by Chief Justice Dickson in the Auditor General’s case,[40] where Parliament has ousted judicial remedies to enforce the Auditor General’s right to information such rights become non-justiciable.

The just-stated view sits comfortably with the occasions on which the courts give effect to so-called privative clauses that explicitly oust judicial review. As a constitutional matter, it is not appropriate for the court to intervene by virtue of the simple fact that Parliament has directed that they must not.

[41]      Courts are simply barred by section 39 from reviewing the documents and thus the ambit of Cabinet secrecy. This is a permissible privative clause unless we have, since the Auditor General’s case, arrived at the constitutional doctrine based on the “fundamental, unwritten principles of the Canadian Constitution”, or on its “organizing principles”, that a judicial decision may always be substituted for a governmental decision in the name of judicial independence.

[42]      It appears to me that the essential constitutional limitations on the assignment of certain functions to non-courts such as the Clerk of the Privy Council, and thus withdrawing them from the courts, are to be found in section 96 of the Constitution Act, 1867 and paragraph 11(d) of the Charter. The issuance of such certificates cannot in my view be characterized as a traditional and necessary function of a superior court of a kind contemplated in 1867 and thus within section 96.[41] Nor can it be seen to be integral to the conduct of a trial within the contemplation of paragraph 11(d) of the Charter: the proceeding before the Commission, out of which this request arises, is not a trial of anyone’s guilt and if, indeed, it were so considered then the Commission would not be constitutionally allowed to conduct it.[42]

[43]      This is not to say that there is no role for the courts in relation to the issuance of certificates under section 39 of the Canada Evidence Act. It has been held that the Court may entertain a proceeding for judicial review of the issuance of a certificate although it may not review the factual correctness of the certificate if it is otherwise in proper form.[43] In performing such a judicial review, a court would be in a position analogous to any court reviewing a decision of a Board whose orders are protected by a privative clause.

[44]      Any concern for the impact of a subsection 39(1) certificate on a judicial body is applicable only to the role of the Federal Court when faced with such a certificate. For reasons stated above the Commission is not a judicial body although it may arguably perform some quasi-judicial functions. It is essentially an agency of the Executive[44] and draws such powers as it has solely from an Act of the same Parliament that enacted the Canada Evidence Act.

B.        Applicability of Section 39 in these Circumstances

[45]      In the alternative the appellants argue that if section 39 is constitutionally valid, it should nevertheless not apply in this situation because “Parliament cannot authorize the Executive to shield its own conduct from constitutional scrutiny by employing section 39 of the Canada Evidence Act”.[45] They therefore invite the Court to read down section 39 as not applying in these circumstances.

[46]      As a general proposition, this argument has considerable force and must be seriously considered.

[47]      The appellants largely base their arguments by way of analogy on three decisions of the Supreme Court. In B.C. Power Corporation v. B.C. Electric Company,[46] in an action involving an attack on the constitutionality of British Columbia legislation by which the province purported to take over the privately-owned electrical supply and distribution system in that province, the plaintiffs, owners of the property being expropriated, sought an interlocutory order to have a receiver of the property appointed pending the outcome of the action. B.C. authorities invoked the then-existing immunity of the Crown in Right of British Columbia from action with respect to its property. The Supreme Court of Canada held that the Crown provincial could not claim a Crown immunity based upon an interest in property which itself depended on the validity of legislation under constitutional attack. It was said that if this were possible the province could achieve its goal of retaining the property even though the enabling legislation was held to be invalid. In Amax Potash Ltd. et al. v. Government of Saskatchewan[47] provincial regulations purporting to impose a tax on certain minerals were under attack in the courts. A long-standing provision of the provincial The Proceedings against the Crown Act[48] precluded inter alia any action to recover taxes paid under a statute or regulation since found to be invalid. The Supreme Court struck down that provision. As Dickson J. [as he then was] stated for the Court “[i]f a state cannot take by unconstitutional means it cannot retain by unconstitutional means”.[49] The Court placed considerable reliance on the earlier B.C. Power case. Air Canada v. British Columbia (Attorney General)[50] also involved an attempt to recover taxes paid under an invalid statute. In British Columbia the old proceeding of petition of right was required for actions against the Crown. When the law was amended in the late 1970s it required that any causes of action arising before August 1, 1974 should proceed by way of petition of right. Petitions of right, of course, required the issue of a fiat by the Lieutenant Governor permitting an action against the Crown, such fiat being issued on the advice of the Attorney General or the provincial Cabinet. Taxes had been paid both before and after August 1, 1974 in compliance with the statute. In an action to recover taxes paid after that date the province had conceded that the tax was invalid.[51] When the appellant Air Canada sought to recover taxes paid before August 1, 1974 a fiat was refused. The Supreme Court ordered the Attorney General of British Columbia to advise the Lieutenant Governor to grant the fiat with respect to the action concerning pre-1974 taxes. Relying on cases such as Amax and B.C. Power Corp. they held that “a statute cannot permit the retention of monies obtained under an unconstitutional statute”,[52] and the same result cannot be achieved by the government withholding a fiat to allow an action for the recovery of that money.

[48]      It will be noted that these cases all involved an attack on the validity of a statute (in the Air Canada case the province had, prior to the Supreme Court decision, conceded that the tax was invalid in the relevant period) and the inability of the Crown to assert, by means of legislation or discretionary refusal of a fiat, rights which completely depended on the validity of that statute.

[49]      Important as these cases no doubt are, I agree with the learned Trial Judge that they are not determinative of the present matter. This Court must deal with the actual case before it. The Trial Judge has concluded, as have I, that section 39 is intrinsically valid and therefore we have no situation of the Crown asserting a right which is squarely based on a statute whose validity is in question. Instead, the appellants assert in a general way that “Parliament cannot authorize the Executive to shield its own conduct from constitutional scrutiny” and that if that is the effect of applying section 39 here, it should not be applied. But in the statement of claim commencing the present proceedings there is no allegation of misconduct on the part of “the Executive”. Instead, there are references to selected bits of evidence before the Commission indicating communications between the Prime Minister’s Office and the RCMP. Even if one treats the Commission as a forum where unlawful conduct by “the Executive” may be relevant to the making of recommendations it must be observed, as the Trial Judge noted,[53] that “the inquiry is concerned with the conduct of the RCMP officers and not the conduct of the executive”. Basically section 45.35 of the RCMP Act gives the Commission power to consider complaints against members of the RCMP and to make recommendations to the Commissioner of the RCMP and the Minister as a result. Any findings which may be made about the conduct of the Prime Minister’s Office or other members of the executive in relation to the conduct of the RCMP will presumably be incidental to this and cannot be legally determinative of whether such persons have done something constitutionally unlawful.[54] Therefore the withholding of documents containing confidences of Her Majesty’s Privy Council pursuant to section 39 cannot in these circumstances prevent any definitive determination of constitutionally unlawful behaviour. That determination would have to be made by a court in an action brought for the purpose of obtaining redress for such behaviour, against those alleged to be guilty of it.

[50]      What in fact the appellants are trying to do here is to turn an action for a declaration as to the constitutional invalidity of section 39 into a collateral attack on the actual decision of the Clerk in this case. This alternative argument as to the non-applicability of section 39, should that section be found valid, was nowhere raised in their statement of claim. The appropriate way to raise this kind of argument would be by way of judicial review of the Clerk’s certificate and, as has been noted above,[55] it is possible to bring an application for judicial review in respect of the issue of such a certificate. If the appellants have any evidence of improper motives in the issue of the certificate they should present them in that context. If there is a question of the Clerk’s jurisdiction related to unconstitutionality of applying the subsection 39(1) procedure in the circumstances of this particular case then the judicial review is also the place to raise it, provided the appellants have some evidence to support the proposition that the certificate was wrongly withheld here. The reviewing court would of course be working under some difficulty in that it would be barred from examining the documents so certified by subsection 39(1). This is an unusual privative clause but one which, for reasons already given, it is open to Parliament to prescribe. Courts are not unfamiliar with privative clauses and this one, precluding the Court from making certain findings of fact, is not unrelated to many other privative clauses. The Court would instead have to draw such inferences as it could from all the surrounding evidence. While there are many good arguments to be made, as a matter of policy, for allowing judges to review the documents and to assure themselves as to their nature, in my view this is not a constitutional imperative.

[51]      The consequence of accepting the appellants’ arguments would be that section 39 would not apply in any case where there was the merest allegation that Cabinet documents might reveal policy or operating decisions arguably inconsistent with the rights of certain individuals. This would severely attenuate the absolute protection of Cabinet communications from disclosure which section 39 now affords.

[52]      I therefore conclude that there is no basis upon which section 39 should be held to be inapplicable to the circumstances of this case.

Costs

[53]      The appellants asked for their costs in this appeal regardless of the outcome. In the Trial Division the learned Trial Judge gave them costs notwithstanding their lack of success. They have nevertheless continued with an appeal, also unsuccessfully. In the circumstances I have concluded that no costs should be awarded.

Disposition

[54]      The appeal will therefore be dismissed, without costs.

Robertson J.A.: I agree.

McDonald J.A.: I agree.

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