A-440-85
Jack Gold (Appellant)
v.
The Queen in right of Canada (Respondent)
INDEXED AS: GOLD V. R. (F.C.A.)
Court of Appeal, Urie, Mahoney and Lacombe
JJ.—Ottawa, January 9 and February 3, 1986.
Practice — Evidence — Disclosure of information
Appeal from dismissal of application to review determination
of objection to disclosure of information — Objection based on
national security — Designated judge correctly dismissing
application without inspecting documents — Inspection appro
priate only if necessary to determine whether disclosure should
be ordered — Certificate and affidavit establishing rational
bases upon which to conclude disclosure injurious to national
security — Goguen v. Gibson not establishing rule order for
production of information made only if absolutely essential to
case — Legislative scheme not containing obvious imbalance
between public interests in national security and administra
tion of justice — Canada Evidence Act, R.S.C. 1970, c. E-10,
s. 36.1 (as am. by S.C. 1980-81-82-83, c. 111, s. 4), 36.2 (as
am. idem) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c.
10, s. 41(2) (as am. by S.C. 1980-81-82-83, c. 111, s. 3).
Practice — Discovery — Production of documents — Infor
mation not required as evidence at trial — Required for
general discovery to enquire whether any helpful evidence
available — Designated judge correctly dismissing application
to review determination of objection without inspecting
documents.
Federal Court jurisdiction — Appeal Division — Appeal
from dismissal of application to review determination of
objection to disclosure of information — Designated judge not
erring in not inspecting documents — Appeal dismissed —
Where inspection necessary, ought to be by designated judge,
not appellate panel.
This is an appeal from dismissal of an application to review
the determination of an objection to disclosure of information.
This is the first time that the Court has been asked to consider
an objection to the disclosure of information based on national
security in the context of a civil action. The statement of claim
alleges a conspiracy among Crown servants. Censored versions
of certain documents were produced at examinations for discov
ery. A certificate objecting to the disclosure of certain informa
tion was filed pursuant to section 36.1 of the Canada Evidence
Act. An affidavit of documents was filed objecting to produc
tion of the documents covered by the certificate and affidavit.
The designated judge dismissed the application for review
without inspecting the documents. The issue is whether that
judge erred in upholding the objection to production without
inspection.
Held, the appeal should be dismissed.
The designated judge correctly dismissed the application
without inspecting the documents. In Goguen v. Gibson it was
held that inspection ought only be undertaken if it appears
necessary to determine whether disclosure should be ordered.
That proposition is equally valid whether disclosure is sought
by a party to a civil action or by the defence in a criminal
prosecution. The designated judge overstated the import of
Goguen when he stated that it had established a rule that
information will not be ordered to be produced if it is merely
corroborative evidence or if the matter can otherwise be proved,
unless it is evidence absolutely essential to the case. In Goguen,
Thurlow C.J. considered the probable tenuous relevance, mar
ginal admissibility and availability of at least some alternative
proof as factors to be considered in deciding whether he should
examine the information. Rules as to what sort of evidence will
be ordered produced should not be formulated until there is an
occasion to go beyond whether a case has been made out
requiring examination of the information.
The designated judge also held that there is an obvious
imbalance between the public interests in non-disclosure, i.e.
protection of national security, and in disclosure of information,
which would be in furtherance of a claim for monetary compen
sation. Parliament has recognized that the public interest in
national security may be outweighed by the public interest in
the administration of justice. There is not, in the legislative
scheme, an obvious imbalance between the two. The subject-
matter of a particular legal proceeding is only one of the factors
to be considered. The particulars of a given claim of risk to
national security must also be considered. The Court is not
obliged to disclose all or none of the information. It could order
the disclosure of some of the information under conditions or
restrictions.
The certificate and affidavit establish entirely rational bases
upon which the designated judge could conclude that the
disclosure of the information could result in injury to national
security.
The appellant argues that by reason of the order for produc
tion, the relevance of the information in issue is not to be
disputed. Although the information relates to the cause of
action, it does not necessarily mean that the appellant will be
prejudiced if it is not disclosed. The information withheld
probably relates to the determination that the appellant is a
"security risk", but that is not in issue.
The designated judge correctly found that the information is
not required as evidence at trial, but merely for general discov
ery to enquire whether any helpful evidence might be available.
In that circumstance, there is no question of disclosure being
ordered.
CASES JUDICIALLY CONSIDERED
APPLIED:
Goguen v. Gibson, [1983] 2 F.C. 463 (C.A.).
NOT FOLLOWED:
Duncan v. Cammell, Laird & Co., Ld., [1942] A.C. 624
(H.L.).
REFERRED TO:
Best Cleaners and Contractors Ltd. v. The Queen, [1985]
2 F.C. 293; (1985), 58 N.R. 295 (C.A.).
COUNSEL:
John P. Nelligan, Q.C. and Dougald E.
Brown for appellant.
I. G. Whitehall, Q.C., D. J. Rennie and David
Akman for respondent.
SOLICITORS:
Nelligan/Power, Ottawa, for appellant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
MAHONEY J.: It is said that this is the first
occasion this Court has been asked to consider an
objection to the disclosure of information based on
national security in the context of a civil action.
The only previous consideration of such an objec
tion under section 36.1 of the Canada Evidence
Act, R.S.C. 1970, c. E-10, as amended by S.C.
1980-81-82-83, c. 111, s. 4, Goguen v. Gibson,
[1983] 2 F.C. 463 (C.A.), was in the context of a
criminal prosecution.
I will first set out material facts underlying the
civil action as they appear from the record in this
appeal. I am aware that none have been subject of
a finding by a trial judge. No information to which
objection to disclosure has been taken is on that
record. Where facts pleaded in the amended state
ment of claim are denied or not admitted in the
statement of defence, I accept them as true for
purposes of this appeal. I also accept as true the
appellant's answers in his examination for
discovery.
The Canadian government recognizes three
levels of security clearance: confidential, secret
and top secret. In that order, they authorize access
to progressively sensitive information. At all ma
terial times, the appellant has had a confidential
clearance.
The appellant, a chartered accountant, was
employed by the Department of National Reve
nue, Taxation, hereinafter "Revenue", in 1957. He
was subject of a security check in 1959. In March,
1978, he was appointed a Senior Rulings Officer.
Rulings Officers make advance rulings binding on
the Department as to the tax consequences of
proposed transactions. Prior to October 16, 1980,
the appellant had been subject of the active inter
est of the RCMP security service. On December
29, 1980, the Personnel Security Officer at Reve
nue replied affirmatively to an RCMP enquiry
whether the appellant was "employed in a position
which affords access to classified information rele
vant to national security". The appellant remained
a Senior Rulings Officer, which required a secu
rity clearance at the confidential level, until, on
April 13, 1981, consequent upon his own applica
tion in March, he was seconded to the Department
of Energy, Mines and Resources, hereinafter
"EM&R", as a Director in the new Petroleum
Incentives Administration.
The secondment was for a six-month term. If his
performance were satisfactory, the appellant could
ordinarily have been expected to be confirmed in
the new position after that period. A term of the
secondment agreement, to which the appellant and
both Departments were party, was that, should he
not be retained by EM&R, he could return to
Revenue at his existing level (AU-4). On May 29,
1981, the appellant was interviewed by an officer
of the RCMP security service. On June 9, he was
notified by EM&R that the secondment would be
terminated forthwith because of his unsatisfactory
performance. He was eventually directed to report
back to Revenue July 13. The security clearance
required for a Senior Rulings Officer had been
changed to the "secret" level. The appellant was
returned to another position at the AU-4 level but,
he says, it is not comparable to, is less prestigious
and less professionally rewarding than, and does
not afford the future career opportunities of a
Senior Rulings Officer.
The appellant asserts a number of causes of
action in his amended statement of claim. The
application under subsection 36.2(1) was dealt
with, and this appeal was presented, on the basis
that the information sought to be disclosed is
material only to the conspiracy alleged in
paragraph 12.
12. The Plaintiff states that following the interrogation by
Trottier on May 29th, 1981, and based on representations by
Woods, Trottier and the R.C.M.P. that the Plaintiff was unreli
able because he refused to divulge names of persons, Woods,
Creech, Hughes Anthony, Blackwell, Trottier and other per
sons employed in the public service or by the R.C.M.P. who are
not at present known to the Plaintiff agreed to take action
against him for the purpose of punishing the Plaintiff and
pressuring him to submit to the R.C.M.P. demands. The Plain
tiff states that such agreement was for the primary purpose of
injuring him or, in the alternative, that the parties to such
agreement knew that their actions would have the likely conse
quence of injury to the Plaintiff.
At all material times, Woods was the Personnel
Security Officer and Blackwell the Departmental
Security Officer at Revenue, Creech and Hughes
Anthony had been the appellant's superiors at
EM&R, and Trottier was an RCMP officer.
The action was commenced November 29, 1982.
Examinations for discovery ensued in June and
July, 1984, and, inter alia, censored versions of
certain documents were produced. On August 14,
1984, pursuant to Rules 448, 451 and 455(2)
[Federal Court Rules, C.R.C., c. 663], the Trial
Division ordered the then defendants to cause to be
filed an affidavit on production "as to all docu
ments that are or have been in their custody,
possession or power relating to any matter in issue
in this action" and also to produce "in uncensored
form" particular documents produced, or of which
the appellant had learned, during the examinations
for discovery. On appeal, that order was varied
only to the extent of limiting the affidavit on
production to "documents in files of which the
[appellant] is the subject" and "documents which
refer to the [appellant] in other files". That order
was made December 17, 1984.
On January 17, 1985, a certificate pursuant to
subsection 36.1(1) of the Canada Evidence Act,
made by the Clerk of the Privy Council, and the
complementary affidavit of the Senior Assistant
Deputy Solicitor General were filed. On January
25, the affidavit of documents was filed objecting
to production of the documents covered by the
certificate and affidavit. The appellant immediate
ly applied for review pursuant to section 36.2.
Prior to the hearing, an amended certificate was
filed, evidently prompted by this Court's decision
in Best Cleaners and Contractors Ltd. v. The
Queen, [1985] 2 F.C. 293; (1985), 58 N.R. 295
(C.A.), which did not object to the production of
information which had been previously disclosed to
the appellant. The Judge hearing the application
directed that:
... the documents be completed to include whatever was said
to or by the [appellant] during the two interviews in issue and
to include also any remarks as to the attitude or demeanor of
the [appellant] during those interviews ....
The application was otherwise dismissed.
Relevant provisions of the Canada Evidence Act
follow:
36.1 (1) A Minister of the Crown in right of Canada or other
person interested may object to the disclosure of information
before a court, person or body with jurisdiction to compel the
production of information by certifying orally or in writing to
the court, person or body that the information should not be
disclosed on the grounds of a specified public interest.
(2) Subject to sections 36.2 and 36.3, where an objection to
the disclosure of information is made under subsection (1)
before a superior court, that court may examine or hear the
information and order its disclosure, subject to such restrictions
or conditions as it deems appropriate, if it concludes that, in the
circumstances of the case, the public interest in disclosure
outweighs in importance the specified public interest.
36.2 (1) Where an objection to the disclosure of information
is made under subsection 36.1(1) on grounds that the disclosure
would be injurious to international relations or national defence
or security, the objection may be determined, on application, in
accordance with subsection 36.1(2) only by the Chief Justice of
the Federal Court, or such other judge of that court as the
Chief Justice may designate to hear such applications.
(3) An appeal lies from a determination under subsection (1)
to the Federal Court of Appeal.
The public interest in national security, served
by non-disclosure of information in the present
circumstances, is self-evident. While it may be
taken for granted by the judiciary, the competing
public interest which would be served by its disclo
sure may not be so generally recognized. It is the
very essence of any judicial system deserving of
public confidence that, above all else, every litigant
be given a fair chance and be seen to have been
given it. Justice may not be done, and it is most
unlikely that it will be seen to have been done, if a
party, even by reason of compelling public interest,
is prevented from fully making out its case or
answering the opposing case. The events ensuing
on the unaccountable loss of the submarine,
Thetis, afford a textbook example, vid. Duncan v.
Cammell, Laird & Co., Ld., [1942] A.C. 624
(H.L.).
The designated judge [[1985] 1 F.C. 642] did
not find it necessary to inspect the documents in
issue. As I see it, the question before this Court is
whether, in the circumstances, that failure to
inspect was an error. In other words, did he err in
upholding the objection to their production with
out inspecting them? Furthermore, it seems to me
that the result here must be either the dismissal of
the appeal or a referral back for reconsideration
and inspection. The suggestion that counsel inspect
the documents and that any unresolved disagree
ment be settled by this Court invites abdication of
judicial responsibility. In the absence of a very
good reason to the contrary, it does seem that
inspection ought, initially at least, be undertaken
by a designated judge, not an appellate panel.
This Court, in Goguen, approved the proposition
that inspection ought only be undertaken if it
appears necessary to determine whether disclosure
should be ordered. That proposition is equally
valid when disclosure is sought by a party to a civil
action as by the defence in a criminal prosecution.
In arriving at the determination not to inspect,
the designated judge said [at page 647]:
In the face of such a certificate where, on the one hand, we
have the public interest to be served by non-disclosure consist
ing of protection of such a vital matter as national security and,
on the other hand, a public interest in disclosure of information
which in essence would be in furtherance of a claim for
monetary compensation, it is difficult for me to conceive of any
set of circumstances where the court would be required to
consider it advisable to examine the documents covered by the
certificate, as there exists such an obvious imbalance between
the two public interests to be served.
The rule that the specific evidence sought be absolutely
essential to the applicant's case as opposed to being merely
confirmatory and that the Court also be satisfied that the
matter cannot be proven in any manner other than by the
divulging of the information sought, has been fully and clearly
established by Thurlow C.J. sitting as the designated judge in
Goguen v. Gibson, [1983] 1 F.C. 872. It was affirmed by our
Court of Appeal in [1983] 2 F.C. 463.
Dealing first with the last of the above para
graphs, I am of the opinion that the import of
Goguen is overstated. In that case, at pages 906
and 907 of the judgment at first instance [[1983] 1
F.C. 872], the Chief Justice stated:
I shall therefore assume that, if tendered, the documents and
information sought would be admitted in evidence and would
be relevant to one or another of the issues. Nevertheless, I have
the impression that some, perhaps many, of the documents may
have next to no relevance at all. I also have the impression that
the relevance of most if not all of them is unlikely to be
anything but peripheral, at the outer limits of admissibility, and
useful, if at all, only as confirming by their mere existence such
direct evidence as there may be on a particular issue. From
their descriptions I do not perceive that any of the items is by
itself evidence of a fact to be proved to establish the defences
indicated by the applicants in their memorandum of points to
be argued.
After giving the matter the best consideration I can give it, I
am unable to regard the disclosure of the documents and
information as being of critical importance to the defences of
the applicants, particularly having regard to the availability to
them of witnesses who will be able to give in general terms
evidence of at least some of the matters that they express their
need to prove to confirm their own evidence.
I find nothing else in that judgment even faintly
supportive of the proposition now under consider
ation. The Court of Appeal did not specifically
refer to that passage. As I understand the Chief
Justice, he considered its probable tenuous rele
vance, marginal admissibility and the availability
of at least some alternative proof as factors proper
ly to be taken into account in deciding whether he
should examine the information. I agree. It is, with
respect, a very large step from that position to an
established rule that information will not be
ordered to be produced, unless it is evidence abso
lutely essential to the case, if it is merely cor
roborative evidence or if the matter can otherwise
be proved. I should not think the formulation of
rules as to what sort of evidence will be ordered
produced should be undertaken until there is an
occasion to go beyond whether a case has been
made out requiring examination of the informa
tion.
I am also concerned with the approach I per
ceive, perhaps wrongly, in the first paragraph.
Parliament has recognized that the public interest
in national security, militating against disclosure,
may be outweighed by the public interest in the
administration of justice, militating in favour of
disclosure. There is not, in the legislative scheme,
an obvious imbalance between the two. The
subject-matter of a particular legal proceeding is
only one of the relevant factors to be considered by
the judge, whom Parliament has charged with
weighing the competing public interests in each
application. In my opinion, just as the subject-
matter, or substance, of a given legal proceeding is
properly to be considered, so must the particulars
or substance of a given claim of risk to national
security.
The Thetis was lost in peacetime, post-launch
ing trials. Disclosure of its plans was sought in
wartime when the public interest in national secu
rity was pre-eminent. It was sought in furtherance
of claims for monetary compensation. The mani
fest imbalance between the competing public inter
ests does not alleviate my impression that, as
between the builders and the survivors of those
lost, justice may not have been done. It is certainly
not apparent to me that it was. Subsection 36.1(2)
of the Canada Evidence Act affords an opportu
nity to satisfy both competing interests. As the
majority of this Court observed in Goguen, at page
473,
... it is clear that the Court is not obliged to think in terms of
disclosing all or none of the information. It could order the
disclosure of some of the information under conditions or
restrictions [it deems appropriate]....
That is what the law now provides. Cases may well
arise which involve only claims for monetary com
pensation in which disclosure under appropriate
conditions or restrictions will be determined, on
balance, to best serve the overall public interest.
The circumstances which led Parliament, at the
instance of the government, to change radically the
laws governing access to information in govern
ment files, Canada's security service and, specifi
cally, to repeal subsection 41(2) of the Federal
Court Act [R.S.C. 1970 (2nd Supp.), c. 10 (as am.
by S.C. 1980-81-82-83, c. 111, s. 3)], ought to be
fresh in judicial minds. As to the latter, Parlia
ment has manifestly found it expedient to substi
tute a judicial discretion for what was heretofore
an absolute right on the part of the executive to
refuse disclosure. It is not to be assumed that any
of this transpired because the government of the
day was spontaneously taken by a selfless desire to
share its secrets. The executive had been unable to
sustain the credibility of the system of absolute
privilege codified in subsection 41(2). The new
system was a politically necessary response to seri
ous public concerns. Effective judicial supervision
is an essential element of the new system. Among
other aspects of the new system, its credibility is
dependent on a public appreciation that the com
peting public interests are, in fact, being judicially
balanced. It will not be well served if it appears
that the exercise of judicial discretion is automati
cally abdicated because national security is accept
ed as so vital that the fair administration of justice
is assumed incapable of outweighing it. Each
application under section 36.2 must be dealt with
on its own merits.
The documents in issue, numbered 1 to 150,
were delivered in two sealed volumes. The amend
ed certificate asserts the injury to national security
anticipated if they are disclosed in the following
terms:
4. More particularly, disclosure of information contained in the
said documents would:
(a) identify or tend to identify human sources and technical
sources of the former Security Service of the Royal Canadian
Mounted Police or the present Canadian Security Intelli
gence Service both hereinafter referred to as the "Service";
(b) identify or tend to identify targets of the Service;
(c) identify or tend to identify methods of operation and the
operational and administrative policies of the Service;
(d) jeopardize or tend to jeopardize the security of the
Service's telecommunications cypher system;
(e) identify or tend to identify relationships that the Service
maintains with foreign security and intelligence agencies and
information obtained from such agencies.
The certificate further identifies the documents
individually as to where in the above categories
each is said to fall. Some fall into more than one.
The supporting affidavit elaborates on the manner
the damage or tendency to damage is anticipated
as arising. For example, as to human sources, it is
deposed, in part, that:
Human source development is a long process, based on a
carefully molded trust that human source identities will be kept
in strict confidence by the Service. It is the absolute assurance
of anonymity that encourages individuals to contribute to the
national security of Canada. If this assurance cannot be upheld,
assistance from the public cannot be obtained. Moreover,
public disclosure of the identities of past or active sources could
expose them and their families to physical danger or
harassment.
The appellant took exception to the sufficiency of
the objection to produce. In my opinion there is no
merit to that. The amended certificate, taken with
the complementary affidavit, establishes entirely
rational bases upon which the designated judge
and this Court ought to conclude that disclosure of
the information could reasonably result in injury
to national security.
The appellant says further that, by reason of the
order for production, the relevance of the informa
tion in issue is not to be disputed. Compliance with
that order does make clear that the information
does relate to the cause of action for conspiracy
and would ordinarily be required to be disclosed by
way of pre-trial discovery. To say that it relates to
that cause of action is not, however, to say that the
appellant will likely be prejudiced if it is not
disclosed.
The information produced as a result of the
order made below, discloses with precision at least
some of the alleged associations and activities and
the perceived evasions comprising, in the aggre
gate, the basis for the determination that the
appellant is a "security risk". It seems almost
certain that the information withheld also relates
to that determination. That he was found to be a
"security risk" is not in issue. It is admitted in the
statement of defence. The appellant says that the
finding that he is a "security risk" is unfounded.
That, however, is not a matter that will be resolved
by his lawsuit. What will be resolved is whether,
ensuing on that finding, he was the victim of a
conspiracy formed no earlier than May 29, 1981.
I agree with the characterization of the desig
nated judge that, on a substantial balance of prob
ability [at page 647],
... the information is not required as evidence at trial but
merely for general discovery to enquire whether any helpful
evidence might in fact be available.
In that circumstance, there is simply no question
of disclosure being ordered. The designated judge
was correct to dismiss the application without
inspecting the documents.
In conclusion, I should say that we were referred
to numerous authorities by both parties. Most, if
not all, were reviewed with care by the Chief
Justice in Goguen. I share, with the designated
judge here and the majority of this Court in
Goguen, the opinion that no useful purpose would
be served by again reviewing them.
I would dimiss the appeal. This appeal is gov
erned by Division D of the Rules of Court. I see no
special reason to order that costs be paid.
URIE J.: I agree.
LACOMBE J.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.