2005 FCA 118
A-417-04
Clerk of the Privy Council (Appellant)
v.
Jean Pelletier and Attorney General of Canada (Respondents)
A-418-04
Clerk of the Privy Council (Appellant)
v.
Michel Vennat and Attorney General of Canada (Respondents)
Indexed as: Pelletier v. Canada (Attorney General) (F.C.A.)
Federal Court of Appeal, Létourneau, Noël and Nadon JJ.A.--Montréal, April 4 and 7, 2005.
Evidence -- Objection to disclosure -- Cabinet confidences -- Appeals from F.C. orders concluding that Canada Evidence Act, s. 39 confidentiality certificates objecting to production of certain documents sought by respondents fatally defective because not containing useful description of date, author, title, content of documents -- F.C. also concluding, after consideration of contents of accidentally disclosed document, that said document not containing confidential information -- Requirements for certificates identified by S.C.C. in Babcock v. Canada (Attorney General) -- Act, s. 39 privilege not irretrievably lost by slight deficiencies in certificate, and Clerk of Privy Council having right to correct inadequacy of description of documents in certificate -- No waiver of s. 39 privilege in instant case, but in any event, waiver in respect of certain documents, information not constituting waiver in respect of other documents, information -- S. 39 objection requiring Court to make determination based on certificate filed -- F.C. conclusion that document not containing confidential information thus invalid -- Memorandum to Cabinet and its recommendations not severable -- Appeals dismissed, subject to appellant's right to file new certificates.
These were two appeals, heard jointly, from two orders of the Federal Court concluding that the certificates submitted by the Clerk of the Privy Council objecting, pursuant to section 39 of the Canada Evidence Act, to the production of certain documents (i.e. memoranda and recommendations to the Council) sought by the respondents, were fatally defective.
The Judge was of the view that the certificates did not contain a useful description of the date, author, title or content of the documents for which privilege was being claimed. He also considered the content of one of those documents, that was inadvertently given to one of the respondents and filed in Court, and concluded that it did not contain confidential information.
Held, the appeals should be dismissed, subject to the appellant's right to file a new certificate in each of the two cases.
The formal requirements for a certificate of confidentiality, identified by the Supreme Court of Canada in Babcock v. Canada (Attorney General), were applied to the documents at issue here. Although some of the minimal requirements for identification of the documents may not have been complied with, the privilege of non-disclosure under section 39 is not necessarily irretrievably lost by the slightest technical or formal deficiency in the certificate. The Clerk of the Privy Council should have the right to correct the inadequacy of the description of documents for which the certificate of confidentiality is filed. The idea of requiring sufficient identification of the documents covered by the certificate is not to cause the benefit of the privilege to be lost but to enable the Court to see on the face of the certificate that these are Cabinet confidences, that they fall under subsection 39(2) of the Act and that the Clerk did not exceed the powers conferred on him by the Act.
Statements made by the Prime Minister and the Minister of Transport, contained in a press release, and the inadvertent disclosure of one of the documents at issue, did not constitute waivers of the privilege of non-disclosure. In any event, waiving the protection of section 39 by releasing certain documents or information does not constitute a waiver of the right to rely on section 39 in respect of other documents or information.
As to the Judge's consideration of the content of one of the claimed documents, on a section 39 objection to the production of document(s), the Court is required to make a determination of the merits of the objection based on the certificate filed, and does not have jurisdiction to examine the document(s) at issue. As there was no waiver of disclosure of the document in question, the Judge's conclusion, based on examining the document, that it did not contain confidential information, was arrived at in the absence of jurisdiction and so was invalid.
Finally, a memorandum to Cabinet and the recommen-dation(s) it contains cannot be severed for confidentiality purposes.
statutes and regulations judicially
considered
Canada Evidence Act, R.S.C., 1985, c. C-5, s. 39.
cases judicially considered
applied:
Babcock v. Canada (Attorney General), [2002] 3 S.C.R. 3; (2002), 214 D.L.R. (4th) 193; [2002] 8 W.W.R. 585; 3 B.C.L.R. (4th) 1; 168 B.C.A.C. 50; 3 C.R. (6th) 1; 289 N.R. 341; 2002 SCC 57; Ainsworth Lumber Co. v. Canada (Attorney General), 2001 BCSC 225; [2001] B.C.J. No. 220 (QL).
distinguished:
Best Cleaners and Contractors Ltd. v. The Queen, [1985] 2 F.C. 293; (1985), 58 N.R. 295 (C.A.).
considered:
Babcock v. Canada (Attorney General) (2000), 188 D.L.R. (4th) 678; [2000] 6 W.W.R. 581; 76 B.C.L.R. (3d) 35; 142 B.C.A.C. 161; 2000 BCCA 348.
APPEALS from two orders of the Federal Court (2004 FC 1072; 2004 FC 1073; [2004] F.C.J. No. 1291 (QL)) concluding that certificates filed by the Clerk of the Privy Council pursuant to section 39 of the Canada Evidence Act objecting to the production of certain documents claimed by the respondents were fatally defective. Appeals dismissed, subject to the appellant's right to file new certificates.
appearances:
Claude Joyal and Pascale C. Guay for appellant (A-417-04; A-418-04).
Suzanne Côté for respondent Jean Pelletier (A-417-04).
Alberto Martinez for respondent Attorney General of Canada (A-417-04).
Louis P. Bélanger and Patrick Girard for respondent Michel Vennat (A-418-04).
Martine L. Tremblay for respondent Attorney General of Canada (A-418-04).
solicitors of record:
Deputy Attorney General of Canada for appellant (A-417-04; A-418-04).
Stikeman, Elliott LLP, Montréal, for respondents Jean Pelletier (A-417-04) and Michel Vennat (A-418-04).
Deslauriers, Jeansonne, Montréal, for respondent Attorney General of Canada (A-417-04).
Kugler, Kandestin LLP, Montréal, for respondent Attorney General of Canada (A-418-04).
The following is the English version of the reasons for judgment of the Court delivered by
[1]Létourneau J.A.: The Court has before it two appeals from two orders made by Hugessen J. of the Federal Court in cases T-611-04 and T-668-04 [Pelletier v. Canada (Attorney General), 2004 FC 1072; 2004 FC 1073, involving the plaintiffs Mr. Pelletier and Mr. Vennat respectively in those cases. Aside from a few differences which we will mention in the course of these reasons, the two appeals essentially involve the same questions. Moreover, the appeals were heard jointly. Consequently, these reasons will dispose of both appeals.
[2]In the two orders which he made on August 4, 2004 Hugessen J. concluded that there were formal defects in the certificates submitted by the Clerk of the Privy Council (the Clerk) by which he objected to producing certain documents claimed by the plaintiffs, and relied on section 39 of the Canada Evidence Act, R.S.C., 1985, c. C-5 (the Act).
[3]The gist of the Judge's decision is to be found in paragraphs 5, 6 and 7 of the reasons for order which he gave in each case:
In my opinion, it is clear beyond the shadow of a doubt that the two documents described by the Clerk in his schedule in the Vennat case, above, and the first document described in his schedule in the Pelletier case, have formal and fatal defects. There is no useful description given regarding the date, author, title or content of the documents. It was not per incuriam that Madam Justice McLachlin specifically mentioned the requirements of the rules of court for all jurisdictions regarding claims of solicitor-client privilege. There must be an adequate description of the document for which privilege is being claimed, not only so that it is possible to decide if the request for privilege is founded, but mostly so that it is possible to identify the document if, at a subsequent stage in the proceedings, an attempt is made to introduce it into evidence or if by any accident or even by inadvertence, it is filed before the Court. In this case, in regard to the documents that I mentioned earlier, this is not done: no useful description is given.
As for the second document in the Pelletier case, a minimal amount of detail is given in that the name of the author of the recommendation is stated. I could find this minimal description sufficient, but I need not decide the issue because in this case, the document in question was filed in the Court record and is before me. I am being asked to declare that it was filed inadvertently. And that also is possible. But the fact is that right now, the document is before me and I have knowledge of its content. Its content is such that it only reproduces--practically to the letter--the description which is given in the impugned order, i.e. it is a brief recommendation that the Governor in Council relieve Mr. Pelletier of his functions.
With respect, I say that the Clerk of the Privy Council could not reasonably find that it was in the public interest to keep confidential this document which, I repeat, is reproduced in the very text of the order, which is public. He could not reasonably make such a finding; he erred in law in so doing. [Emphasis added.]
Parties' arguments
[4]The appellant submitted that the certificates are sufficient with respect to the documents to which they refer. He added that, contrary to what the respondents argued, there was no waiver of the privilege of non-disclosure conferred by section 39 of the Act. Finally, he maintained that the Judge was wrong to consider the content of the document inadvertently given to Mr. Pelletier and covered by the Clerk's certificate. In the particular case, this was the recommendation made to the Governor in Council to relieve Mr. Pelletier of his duties.
[5]Finally, and alternatively, relying on the purpose and objectives of section 39 of the Act, the appellant said that in his opinion if the Court came to the conclusion the certificates were insufficient, he should be allowed to correct the formal defect(s) by the filing of new certificates that would meet the legal requirements in the matter.
[6]Counsel for the respondents, for their part, to no one's surprise, objected to the appellant's claims. They endorsed the reasons of the Federal Court Judge, adding a number of arguments from which we will consider only the following, in view of the conclusion to which the Court has come on the adequacy of the certificates.
[7]As mentioned earlier, counsel for the respondents argued there was a waiver by the appellant of the privilege of non-disclosure. They based their argument on two events.
[8]First, in a press release on March 1, 2004 the Prime Minister and Minister of Transport disclosed part of the deliberations of Cabinet, thereby waiving the confidentiality of Cabinet proceedings which the privilege seeks and tends to protect.
[9]Second, in Mr. Pelletier's case, the disclosure of the recommendation made to the Governor General in Council is not the result of error or inadvertence, but was due to the appellant's negligence. In addition to this, they submitted, there was a lack of diligence in correcting the alleged error and recovering the document, which as they see it confirmed that the disclosure was deliberate.
[10]In the respondents' submission, the Judge was right to review the recommendation, which in the Pelletier case had been entered in the record by the plaintiff, who obtained possession of it and was familiar with its content. They added that he was all the more justified in doing so as no one objected to his examining the content.
[11]Finally, the respondents maintained that paragraph 39(2)(a) of the Act, set out below, does not protect the recommendation as such and that the confidentiality mentioned therein applies only to the content of the memorandum leading to the recommendation:
Confidences of the Queen's Privy Council for Canada
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.
Adequacy of description of documents covered by confi-dentiality certificate
[12]For a clearer understanding of the matter it is worth setting out in each case both the certificate as such and the schedule referred to in the certificate, as the latter provides details on the documents at issue and their confidentiality:
[translation] I the undersigned, Alex Himelfarb, domiciled in the city of Ottawa in the province of Ontario, do certify and state the following:
| 1. I am the Clerk of the Queen's Privy Council for Canada and the Secretary to the Cabinet; |
| 2. I have examined and carefully inspected the two documents mentioned in the attached Schedule to determine whether they contain confidences of the Queen's Privy Council for Canada and whether disclosure of them should be refused pursuant to section 39 of the Canada Evidence Act, R.S.C., 1985, c. C-5 (the Act). |
| 3. I certify to this Honourable Court that, within the meaning of subsection 39(1) of the Act, the documents mentioned in the said Schedule are confidences of the Queen's Privy Council for Canada for the reasons stated in the attached schedule, and I object to disclosure of these documents and of the information which they contain. |
| 4. I further certify to this Honourable Court that paragraph (a) of subsection 39(4) of the Act does not apply to these documents, since they did not exist twenty years ago, and that paragraph (b) of the same subsection of the said Act does not apply to these documents because they are not discussion papers covered by paragraph 2(b). |
| 5. If it were sought to obtain oral testimony on the confidences contained in the documents, the disclosure of which I object to in this certificate, I would object to such testimony on the same grounds as those for which I object to the disclosure of the information in question herein. |
SCHEDULE TO CERTIFICATE BY
ALEX HIMELFARB
DATED THE 1OTH DAY OF JUNE 2004 in
Michel Vennat v. The Attorney General of Canada
| 1. Submission to Governor in Council (content indicates February 2004) |
Document No. 1 is a copy of a document consisting of information contained in a memorandum the purpose of which is to present proposals or recommendations to Council within the meaning of paragraph 39(2)(a) of the Canada Evidence Act (the Act).
Document No. 1 is also a copy of a document consisting of information contained in an agendum of Council or a record recording its deliberations within the meaning of paragraph 39(2)(c) of the said Act.
| 2. Submission to Governor in Council (content indicates March 2004) |
Document No. 2 is a copy of a document consisting of information contained in a memorandum the purpose of which is to present proposals or recommendations to the Council within the meaning of paragraph 39(2)(a) of the said Act.
Document No. 2 is also a copy of a document consisting of information contained in an agendum of Council or a record recording its deliberations or decisions within the meaning of paragraph 39(2)(c) of the said Act.
SCHEDULE TO CERTIFICATE BY
ALEX HIMELFARB
DATED THE 26TH DAY OF MAY 2004 in
Jean Pelletier v. Attorney General of Canada
| 1. Submission to Governor General in Council (content indicates March 2004) |
Document No. 1 is a copy of a document consisting of information contained in a memorandum the purpose of which is to present proposals or recommendations to Council within the meaning of paragraph 39(2)(a) of the Canada Evidence Act (the Act).
Document No. 1 is also a copy of a document consisting of information contained in an agendum of Council or a record recording deliberations or decisions of Council within the meaning of paragraph 39(2)(c) of the said Act.
| 2. Ministerial recommendation to Governor in Council, signed by Tony Valeri, Minister of Transport (content indicates March 2004) |
Document No. 2 is a copy of a document consisting of information contained in a memorandum the purpose of which is to present proposals or recommendations to Council within the meaning of paragraph 39(2)(a) of the Canada Evidence Act (the Act).
[13]The Court is not necessarily persuaded that the certificates and accompanying schedules are, to use the Judge's phrase, subject to "formal and fatal defects." For example, to take the certificate and schedule in Mr. Pelletier's case, it can be seen that, first, the certificate itself excludes the application of paragraph 39(4)(b), by specifying that it is not a discussion paper covered by paragraph (2)(b).
[14]Further, as regards the first document, the certificate and schedule describe that document and indicate that it is a document within the meaning of paragraph 2(b), namely a memorandum (in French "une note") submitted to the Governor General in Council to present proposals or recommendations to Council, that the memorandum is dated March 2004 and that it is intended for the Council.
[15]Relying on the Supreme Court of Canada judgment in Babcock v. Canada (Attorney General), [2002] 3 S.C.R. 3, the respondents objected that the particulars contained in the schedule and relating to this first document did not disclose the title of the document and its origin or author. On the latter aspect, we note that the respondents themselves suggested, which in the circumstances does not seem to the Court to be an unreasonable conclusion, that the recommendation originated with the Minister of Transport, responsible for VIA Rail Canada Inc., of whose board of directors Mr. Pelletier was chairperson. Clearly it cannot be said they were completely in the dark as to the author or origin of the recommendation and suffered prejudice thereby.
[16]In any case, in Babcock, at paragraph 28, the Supreme Court identified the formal requirements for a certificate of confidentiality:
What formal certification requirements flow from this? The second, discretionary element may be taken as satisfied by the act of certification. However, the first element of the Clerk's decision requires that her certificate bring the information within the ambit of the Act. This means that the Clerk or minister must provide a description of the information sufficient to establish on its face that the information is a Cabinet confidence and that it falls within the categories of s. 39(2) or an analogous category; the possibility of analogous categories flows from the general language of the introductory portion of s. 39(2). This follows from the principle that the Clerk or minister must exercise her statutory power properly in accordance with the statute. The kind of description required for claims of solicitor-client privilege under the civil rules of court will generally suffice. The date, title, author and recipient of the document containing the information should normally be disclosed. If confidentiality concerns prevent disclosure of any of these preliminary indicia of identification, then the onus falls on the government to establish this, should a challenge ensue. On the other hand, if the documents containing the information are properly identified, a person seeking production and the court must accept the Clerk's determination. The only argument that can be made is that, on the description, they do not fall within s. 39, or that the Clerk has otherwise exceeded the powers conferred upon her. [Emphasis added.]
[17]We are prepared to apply the same identification requirements to the documents at issue here, namely:
(a) the date--if of course the document has one--consisting not only of the month and year but also the day, if specified;
(b) the title, if the document is given one, as it certainly cannot be said that Cabinet memoranda necessarily have specific titles;
(c) the author of the Cabinet memorandum, the Council agendum or the record of its deliberations, though it is permissible to infer this from the document itself, its nature and provenance; and
(d) the recipient of these documents, which presents no problem in the case at bar.
Probably, Council agenda and records of the Council's deliberations were dated and attributed to an author or department. Similarly, memoranda to the Council containing recommendations had to have an author. On the other hand, there is nothing in the record to indicate that they had a title and that the dates on which they were prepared were indicated.
[18]In short, some of the minimal requirements for identification of the documents may not have been complied with. However, having said that, it does not necessarily follow that the defect cannot be corrected and that the privilege of non-disclosure is lost. We need only consider the functions and purposes of section 39 of the Act to see that this is not so: the section is to ensure confidentiality for discussions held in Cabinet, enable members to discuss aspects of the problems they are considering freely and take the controversial government decisions required by their duties, to avoid documents they read and statements they made becoming the object of public scrutiny and to avoid their being the subject of unfounded or specious public or political criticism (see paragraphs 17 and 18 of Babcock).
[19]To conclude, as the respondents suggest, that the privilege under section 39 of the Act is irretrievably lost by the slightest technical or formal deficiency in the certificate, is to give form priority over substance, at the expense of the very purposes of the privilege. We do not believe that this was the legislative intent or the effect sought by the Supreme Court of Canada in Babcock when it indicated the identification requirements.
[20]In Ainsworth Lumber Co. v. Canada (Attorney General), 2001 BCSC 225, Tysoe J. of the British Columbia Supreme Court considered that the solution in such cases was to allow a new, more specific and explicit certificate to be filed within a given time. Southin J.A., dissenting in Babcock v. Canada (Attorney General) (2000), 188 D.L.R. (4th) 678 (B.C.C.A.), at page 705, when it was heard by the British Columbia Court of Appeal, also came to the same conclusion.
[21]We consider that this remedial approach is more consistent with the purposes of section 39, more likely to attain those purposes and so more in keeping with the legislative intent, as the idea of requiring sufficient identification of the documents covered by the certificate is not to cause the benefit of the privilege to be lost but to enable the Court to see on the face of the certificate that these are Cabinet confidences, that they fall under subsection 39(2) of the Act and that the Clerk did not exceed the powers conferred on him by the Act. In the Court's view, the holder of this public interest privilege should have the right to correct the inadequacy of the description of documents for which the certificate of confidentiality is filed.
Waiver of privilege by appellant
[22]The respondents regard the following two statements, one by the Prime Minister and the other by the Minister of Transport, contained in a press release, as a waiver of the section 39 privilege over all information claimed in this matter:
"The comments made last week by Mr. Pelletier regarding Myriam Bédard were totally unacceptable," said Prime Minister Paul Martin. "I asked people who had knowledge about possible wrongdoings to come forward. And when they do, I expect them to be treated fairly. This was clearly not the case. My government came to office with a commitment to change the way things work. The actions we are taking today reflect that commitment."
Transport Minister Valeri said: "Last week I stated that the government would review the comments of the VIA Chairman and would take appropriate action. It is completely inappropriate for the chairman of a Crown corporation to make comments of this nature about someone identifying wrongdoing in the workplace."
[23]This argument by the respondents is without merit. It amounts to saying that because a member of Cabinet may have deliberately, negligently or accidentally disclosed certain confidences discussed in Cabinet, all the other members of Cabinet lose the benefit of the privilege not only in respect of that confidence, but also all other information relating to it, when the Clerk files a confidentiality certificate pursuant to section 39. That is to deprive section 39 of all meaning.
[24]Even admitting that the press release mentioned above could constitute a waiver of the confidentiality of the information contained in these comments, which is far from clear since there is no indication the comments were made at the Cabinet meeting, waiving the protection of section 39 of the Act by releasing certain documents or information does not, as the Supreme Court noted in Babcock, constitute a waiver of the right to rely on section 39 in respect of other documents or information. At paragraph 35, McLachlin C.J. wrote:
Section 39 protects "information" from disclosure. It may be that some information on a particular matter has been disclosed, while other information on the matter has not been disclosed. The language of s. 39(1) does not permit one to say that disclosure of some information removes s. 39 protection from other non-disclosed information.
[25]In Mr. Pelletier's case, as regards disclosure of the recommendation made to the Governor in Council itself, the Court is satisfied that this was done inadvertently and clearly cannot be a waiver of the privilege of non-disclosure. Ms. Nixon, executive assistant to the Deputy Minister of Transport Canada, explained in her affidavit and in her testimony that, in her haste to try and inform Mr. Pelletier of the Council's decision regarding him, she failed to instruct her staff to send the recipient only the Order in Council itself: see Appeal Book in A-417-04, at pages 56, 57 and 117 to 121.
[26]The Court is also satisfied that the appellant did not delay unduly in taking the necessary action to correct the error and ensure confidentiality for the document in question, once the error had been discovered.
Whether Judge right to examine content of document itself to decide on its confidentiality
[27]It will be recalled that the Judge said that in his opinion the description of document No. 2 might be sufficient to meet the requirements of section 39 of the Act, but reading the document persuaded him it was not necessary to keep the document confidential.
[28]The document was filed with the Judge by the plaintiff, Mr. Pelletier. His counsel argued that, since the document was filed in the proceedings, it would be unfair and prejudicial to the administration of justice not to allow the Judge to examine its content. She cited the following passage from this Court's judgment in Best Cleaners and Contractors Ltd. v. The Queen, [1985] 2 F.C. 293 (C.A.), which is found 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 disclosure 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 confidentiality against only the Court in such a case implies a Parliamentary intention to permit the filing of a certificate to obstruct the administration of justice while serving no apparent legitimate purpose. [Emphasis added.]
[29]With respect, we do not believe that this decision is of any great assistance in the case at bar, since we are not dealing here with a document which was lawfully disclosed in a legal proceeding, but rather with a document disclosed by mistake outside a legal proceeding, although it ended up in a legal proceeding to determine whether it was confidential.
[30]The Judge had before him an objection to the filing of this document pursuant to section 39 of the Act. The definition of his function and powers is found in subsection 39(1): he must decide on the merits of the objection to filing based on the certificate filed, and if the parameters of section 39 have been observed, he is required to refuse disclosure of the document without examining it. It is not the function of the Judge to examine the document in question and weigh the opposing interests, that is, to determine whether the public interest in disclosure of the document outweighs its protection. The exercise of weighing interests is for the Clerk, not the Court. At paragraph 17 of Babcock, McLachlin C.J. wrote:
Sections 37, 38 and 39 of the Canada Evidence Act deal with objections to the disclosure of protected information held by the federal government. Section 37 relates to all claims for Crown privilege, except Cabinet confidences, or confidences of the Queen's Privy Council; s. 38 pertains to objections related to international relations or national defence; and s. 39 deals with Cabinet confidences. Under ss. 37 and 38, a judge balances the competing public interests in protection and disclosure of information. Under s. 39, by contrast, the Clerk or minister balances the competing interests. [Emphasis added.]
[31]Further, we repeat, the Judge's determination of the merits of the objection based on section 39 of the Act must be made in reliance on the certificate, and the Judge does not have jurisdiction to examine the document. Thus, the fact that the parties did not object to his examining the document does not have the effect of giving him jurisdiction which the Act not only does not give him, but expressly denies him. In this connection, it is worth recalling the comments of McLachlin C.J. at paragraphs 17 and 40 of Babcock:
If the Clerk or minister validly certifies information as confidential, a judge or tribunal must refuse any application for disclosure, without examining the information.
. . .
The court, person or body reviewing the issuance of a s. 39 certificate works under the difficulty of not being able to examine the challenged information. A challenge on the basis that the information is not a Cabinet confidence within s. 39 thus will be generally confined to reviewing the sufficiency of the list and evidence of disclosure. A challenge based on wrongful exercise of power is similarly confined to information on the face of the certificate and such external evidence as the challenger may be able to provide. Doubtless these limitations may have the practical effect of making it difficult to set aside a s. 39 certificate. [Emphasis added.]
[32]In the circumstances, as there was no waiver of disclosure of the document in question, namely the recommendation to the Governor General in Council, the Judge could not examine the document. His conclusion, based on examining the document, that there was nothing confidential in the said document was arrived at in the absence of jurisdiction and so is invalid.
Whether paragraph 39(2)(a) protects the recommendation itself
[33]The argument of the respondent Mr. Pelletier on this point is based on a specious but incorrect reading of paragraph 39(2)(a) of the Act. The memorandum and the recommendation(s) it contains cannot be severed for confidentiality purposes. It is also not inconceivable that the recommendation finally adopted could refer to information contained in the confidential memorandum, which explains the recommendation itself or the choice of this recommendation, rather than some other among those proposed.
Conclusion
[34]For these reasons, the appeals will be dismissed with costs, subject to the appellant's right to file a new certificate in each of the two cases pursuant to section 39 of the Act within 15 days of these reasons, which provides a description of the documents consistent with the requirements of Babcock, as discussed in paragraph 17 of these reasons.
[35]If the appellant fails to do this within the time specified, the documents at issue shall be delivered to the respondents.