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Evidence - Privilege - Public Interest (Cabinet)

. China Mobile Communications Group Co., Ltd. v. Canada (Attorney General)

In China Mobile Communications Group Co., Ltd. v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered the adequacy in this case of the rare Crown remedy of a s.39 Canada Evidence Act (CEA) certificate in support of claims of cabinet privilege:
[33] The appellants also argue that the decisions below wrongly treated Tsleil-Waututh as the authority on the sufficiency of certificates under section 39 of the Canada Evidence Act, and because of this strayed from the Supreme Court’s guidance in Babcock. In their view, Tsleil-Waututh involved a unique, fact-driven analysis that permitted, only exceptionally, this Court’s departure from Babcock. The appellants also point to Smith, Kline & French v. Attorney General of Canada, [1983] 1 F.C. 917, 1983 CanLII 5055 (FC) [Smith, Kline], which they say establishes a higher bar for certificate sufficiency than that applied by the Associate Judge and the Federal Court. The appellants maintain before this Court that item #1 of the schedule to the certificate includes only generic descriptions of the relevant material, making it impossible for the appellants to know whether the timeline of the documents’ preparation and delivery complied with the prescribed periods required by the ICA.

....

[35] With respect to the section 39 certificate, the respondents say that it satisfies the requirements of Babcock. They say that the certificate on its face permits a court to ensure that the Clerk of the Privy Council (the Clerk) has withheld only those documents that fall under section 39, and has not therefore exceeded their statutory powers. According to the respondents, the Associate Judge arrived at a conclusion that was not only consistent with Babcock, but was also consistent with the later applications of that decision in Tsleil-Waututh and Volpe. The respondents argue that the appellants’ reliance on Smith, Kline is misplaced, as that decision pre-dates Babcock and involved an action with discovery instead of an application for judicial review.

....

B. Ground #2: The sufficiency of the respondents’ certificate under section 39 of the Canada Evidence Act

[51] Section 39 of the Canada Evidence Act establishes a mechanism for the responsible exercise of the power to claim Cabinet confidentiality in the context of judicial and quasi-judicial proceedings. Under subsection 39(1) of the Canada Evidence Act, the Clerk of the Privy Council may object to the disclosure of Cabinet confidences by certifying information as confidential. Subsection 39(1) also requires that, where the Clerk or a minister has validly certified the information as confidential, a judge or tribunal must refuse any application for disclosure of information without examining the information. The categories of information that fall within the scope of a confidence of the Queen’s Privy Council for Canada are enumerated in subsection 39(2).

[52] The Supreme Court has articulated the following four requirements for a valid certification of confidentiality under section 39: it must be done by the Clerk or minister, relate to information within subsection 39(2), be done in a bona fide exercise of delegated power and be done to prevent disclosure of hitherto confidential information (Babcock at para. 27).

[53] The Clerk or minister must provide a description of the withheld information sufficient to establish on its face that the information is a Cabinet confidence falling under the protection of section 39. Four indicia should normally be provided to establish that the document is in fact a confidence (Babcock at para. 28):
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.
[54] The appellants here dispute only the sufficiency of item #1 of the schedule to the certificate, in terms of its formal aspects and the particulars it provides. The appellants do not assert that the Clerk improperly exercised the discretion conferred by subsection 39(2).

[55] The certificate reflects the jurisprudence governing the application of section 39 of the Canada Evidence Act.

[56] In Tsleil-Waututh, this Court dealt with a description equivalent to that in issue in this appeal. The Associate Judge noted the similarity in language between item #1 of the certificate, and the second item of the certificate in Tsleil-Waututh (CMJ Reasons at paras. 63-65; see para. 29 of Tsleil-Waututh for a reproduction of the certificate in that case). The only differences between these items are those aspects that would necessarily vary depending on the factual circumstances: the date of the submission to the Governor in Council, the relevant minister, the subject matter of the proposed Order in Council, and the nature of the materials accompanying the submission. Otherwise, the descriptions are identical; they provide the same level of detail regarding the accompanying materials, describing them only in broad terms and omitting any dates related to the materials’ preparation or delivery.

[57] The applicants in Tsleil-Waututh advanced the same argument as that advanced before this Court: that the description of the materials said to have accompanied the Minister’s submission to the Governor in Council lacked specificity (Tsleil-Waututh at para. 30). This Court in Tsleil-Waututh rejected this argument (Tsleil-Waututh at paras. 40-42). This Court found that the description of the second item—the item comparable to item #1 in this case—was adequate, upon considering the alternative language available to the Clerk (Tsleil-Waututh at para. 42):
If more particularity in the descriptions were supplied, there would be a substantial likelihood that the information that lies at the heart of what section 39 exists to protect would be disclosed to some extent. Enough concerning [the second item] has been disclosed to convince me that the decision to make the certificate and the certificate itself, in the words of Babcock, “flow from statutory authority clearly granted and properly exercised.”
[58] The appellants here argue that, in dismissing the applicants’ production motion, this Court in Tsleil-Waututh considered the fact that the evidentiary record on the application for judicial review was already sufficient for a meaningful review. They argue that a similarly full evidentiary record does not exist here, and that this distinguishes Tsleil-Waututh from the present matter.

[59] The fact that the evidentiary record in Tsleil-Waututh was both expansive and growing played no role in this Court’s conclusion that the certificate was valid. This Court only commented on the state of the record in obiter to observe that the use of the section 39 certificate would not immunize the exercise of public powers as the applicants in that case suggested (Tsleil-Waututh at para. 56). Further, as the respondents point out, this Court transitioned to its discussion in obiter by clarifying that “the impact that a section 39 certificate might have on litigation is not a relevant factor for assessing the validity or sufficiency of a certificate” (Tsleil-Waututh at para. 49). The state of the evidentiary record here does not distinguish Tsleil-Waututh.

[60] I turn now to the appellants’ argument that the Federal Court erred by accepting the application of Tsleil-Waututh, instead of Babcock, to the certificate before it. According to the appellants, Babcock, as the leading case on certificates under section 39 of the Canada Evidence Act, cannot give way to any jurisprudence that merely applies its principles to a unique set of factual circumstances. I disagree with this characterization of the relationship between Tsleil-Waututh and Babcock.

[61] The principles emerging from Tsleil-Waututh are not contrary to those established in Babcock, nor do they apply only in exceptional circumstances as suggested by the appellants. Tsleil-Waututh does not diverge from Babcock. Although Babcock enumerated four indicia of identification that will generally suffice for a valid certificate under section 39, and although this Court in Tsleil-Waututh found the certificate before it to be valid even without these particular indicia, the decisions are not inherently at odds. As this Court acknowledged, the indicia listed by the Supreme Court were provided as examples only of what normally should be disclosed (Tsleil-Waututh at para. 32). The Supreme Court emphasized that the real concern driving analyses of certificates is whether the description of the information is “sufficient to establish on its face that the information is a Cabinet confidence and that it falls within the categories of s. 39(2)” (Babcock at para. 28).

[62] Tsleil-Waututh adheres to this principle. The Court asked whether it was clear that the withheld materials fell under section 39 of the Canada Evidence Act based upon the language of the certificate, and was satisfied that the application of section 39 was indeed clear on the face of the certificate (Tsleil-Waututh at paras. 34 and 38). This follows, precisely, the analysis as set out in Babcock. Babcock does not impose formalistic, rigid requirements on a certificate under section 39, absent which the certificate must necessarily be invalid or valid; instead Babcock focuses on the requirement that the certificate bring the withheld information within the ambit of section 39 for the benefit of judges and tribunals dealing with production requests and responsible for verifying the executive’s power to claim Cabinet confidentiality. The appellants’ assertion that Tsleil-Waututh cannot be considered alongside Babcock must fail.

[63] I also disagree with the appellants’ argument that Smith, Kline establishes an error in the Federal Court’s decision. Smith, Kline predates Babcock and the subsequent jurisprudence applying the Supreme Court’s guidance in Babcock. The Federal Court in Smith, Kline also does not establish the high bar for certificate sufficiency that the appellants describe. The certificate in that case listed 70 withheld documents “without giving particulars as to dates, titles, authors, addresses, etc.”, and instead described the documents with blanket terms that did not demonstrate the Clerk to have directed their mind to the criteria and limitations applicable to the assertion of Cabinet confidentiality (Smith, Kline at 928-931). Because of its place in the jurisprudence on section 39 of the Canada Evidence Act and the unique wording of the certificate at issue, Smith, Kline does not support the argument that the certificate in this case is invalid.
. Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner)

In Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner) (Ont CA, 2022) the Court of Appeal, in the context of an unsuccessful Crown FOI appeal [where there is a 'cabinet deliberations' exclusion from disclosure: FIPPA s.12], extensively considers the issue of cabinet privilege [paras 37-210] (91-210 is a useful dissent).

. Nova Scotia (Attorney General) v. Judges of the Provincial Court and Family Court of Nova Scotia

In Nova Scotia (Attorney General) v. Judges of the Provincial Court and Family Court of Nova Scotia (SCC, 2020) the Supreme Court of Canada considered public interest immunity as it applied to Cabinet records sought in a judicial review over judge's salaries:
[61] Public interest immunity protects the confidentiality of Cabinet deliberations: Carey, at pp. 655-59 and 670-71; B.C. Provincial Court Judges, at paras. 67 and 98. The Nova Scotia legislature has not displaced the common law doctrine of public interest immunity and, indeed, in the context of proceedings against the Crown, has preserved it: Proceedings against the Crown Act, R.S.N.S. 1989, c. 360, s. 11.

[62] The common law test is whether the public interest in the document remaining confidential outweighs the public interest in its being disclosed: Carey, at pp. 653-54 and 670; Babcock v. Canada (Attorney General), 2002 SCC 57, [2002] 3 S.C.R. 3, at para. 19; B.C. Provincial Court Judges, at para. 99. The main factors relevant to balancing the competing public interests in confidentiality and disclosure of documents concerning Cabinet decision making were described in Carey, at pp. 670-73:
(1) the level of the “decision-making process”;

(2) the “nature of the policy concerned”;

(3) the “particular contents of the document”;

(4) the timing of disclosure;

(5) the “importance of producing the documents in the interests of the administration of justice”; and

(6) whether the party seeking the production of the documents “alleges unconscionable behaviour on the part of the government”.
In the companion appeal, I explained how these factors apply in the context of a Bodner review: see B.C. Provincial Court Judges, at paras. 106-19.

[63] The burden is on the government to establish that a document should not be disclosed because of public interest immunity: Carey, at pp. 653 and 678; B.C. Provincial Court Judges, at para. 102. The government should put in a detailed affidavit to support its claim of public interest immunity and it will often be helpful for the government to be as specific as possible in identifying harm that would result from disclosure: Carey, at pp. 653-54 and 671; B.C. Provincial Court Judges, at para. 102.
. British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia

In British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia (SCC, 2020) the Supreme Court of Canada considered public interest immunity (also referred to as public interest 'privilege', which I think is the better term as it applies to information, rather than immunity - which applies to individuals or groups of individuals) as it applied to Cabinet records sought in a judicial review over judge's salaries:
[7] Public interest immunity requires a careful balancing between the competing public interests in confidentiality and disclosure. Since there will be a strong public interest in keeping a document concerning Cabinet deliberations confidential, it must be outweighed by a still stronger public interest to warrant the document’s disclosure. In the Bodner context, the strength of the public interest in disclosure will often depend on the importance of the document to determining the issues before the court in the Bodner review.

....

C. Public Interest Immunity

[95] There is a strong public interest in maintaining the confidentiality of deliberations among ministers of the Crown: Carey, at pp. 647 and 656‑59; Babcock, at paras. 18‑19. As a matter of constitutional convention, Cabinet deliberations are confidential: N. d’Ombrain, “Cabinet secrecy” (2004), 47(3) Canadian Public Administration 332, at pp. 334‑35. Federal ministers swear an oath as Privy Counsellors to “honestly and truly declare [their] mind and [their] opinion” and to “keep secret all matters . . . secretly treated of” in Cabinet: see C. Forcese and A. Freeman, The Laws of Government: The Legal Foundations of Canadian Democracy (2nd ed. 2011), at p. 352. Provincial and territorial ministers swear a similar oath as executive counsellors.

[96] Ministers enjoy freedom to express their views in Cabinet deliberations, but are expected to publicly defend Cabinet’s decision, even where it differs from their views: see A. Heard, Canadian Constitutional Conventions: The Marriage of Law & Politics (2nd ed. 2014), at pp. 106‑7; d’Ombrain, at p. 335. The confidentiality of Cabinet deliberations helps ensure that they are candid and frank and that what are often difficult decisions and hard‑won compromises can be reached without undue external interference: see Forcese and Freeman, at p. 352; d’Ombrain, at p. 335. If Cabinet deliberations were made public, ministers could be criticized for publicly defending a policy inconsistent with their private views, which would risk distracting ministers and undermining public confidence in government.

[97] Grounded in constitutional convention as much as in practical considerations, this confidentiality applies whether those deliberations take place in formal meetings of the Queen’s Privy Council for Canada,[6] or a province or territory’s Executive Council, or in meetings of Cabinet or of committees composed of ministers, such as Treasury Board. The confidentiality extends not only to records of Cabinet deliberations, but also to documents that reflect on the content of those deliberations: Babcock, at para. 18.

[98] The common law protects the confidentiality of Cabinet deliberations through the doctrine of public interest immunity: Babcock, at para. 60. Public interest immunity forms part of federal common law and the common law of each province and territory: see Babcock, at paras. 19, 23 and 26. As with any common law rule, Parliament or a legislature may limit or do away with public interest immunity, provided it clearly expresses its intention to do so: Quebec (Commission des droits de la personne) v. Attorney General of Canada, 1982 CanLII 161 (SCC), [1982] 1 S.C.R. 215, at p. 228; Babcock, at para. 20; see, more generally, R. v. D.L.W., 2016 SCC 22, [2016] 1 S.C.R. 402, at para. 21.[7]

[99] In Smallwood v. Sparling, 1982 CanLII 215 (SCC), [1982] 2 S.C.R. 686, and in Carey, this Court rejected absolute Crown privilege and instead recognized a qualified public interest immunity. Public interest immunity prevents the disclosure of a document where the court is satisfied that the public interest in keeping the document confidential outweighs the public interest in its disclosure: see Carey, at pp. 653‑54 and 670; Babcock, at para. 19; see also Bisaillon v. Keable, 1983 CanLII 26 (SCC), [1983] 2 S.C.R. 60, at p. 97.[8]

[100] Although this Court rejected claims of absolute Crown privilege in Smallwood and Carey, it did not “accord the individual an automatic right to discovery of sensitive and confidential documents held by the state”: Michaud v. Quebec (Attorney General), 1996 CanLII 167 (SCC), [1996] 3 S.C.R. 3, at para. 54. Smallwood and Carey thus require a careful balancing of the competing public interests in confidentiality and disclosure: see Babcock, at para. 19; R. v. Barros, 2011 SCC 51, [2011] 3 S.C.R. 368, at para. 35. These competing public interests must be weighed with reference to a specific document in the context of a particular proceeding.

[101] In Carey, at pp. 670‑73, this Court described the main factors relevant to balancing the public interests in confidentiality and disclosure of documents concerning public decision making, including at the Cabinet level:
(1) the level of the “decision‑making process”;

(2) the “nature of the policy concerned”;

(3) the “particular contents of the documents”;

(4) the timing of disclosure;

(5) the “importance of producing the documents in the interests of the administration of justice”; and

(6) whether the party seeking the production of the documents “alleges unconscionable behaviour on the part of the government”.
[102] Although public interest immunity may be raised by any party or by the reviewing court itself, the government has the burden of establishing that a document should not be disclosed because of public interest immunity: Carey, at pp. 653 and 678. The government should put in a detailed affidavit to support its claim of public interest immunity: pp. 653‑54.

[103] As a general rule, when it is clear to the reviewing court, based on a government’s submissions, that public interest immunity applies to a document, it need not inspect the document: Carey, at pp. 671 and 681. If, however, the court has doubts about whether public interest immunity applies, the court should inspect the document in private to resolve its doubts: pp. 674 and 681; see also Somerville v. Scottish Ministers, [2007] UKHL 44, [2007] 1 W.L.R. 2734, at paras. 156 and 204; Al Rawi v. Security Service, [2011] UKSC 34, [2012] 1 A.C. 531, at para. 145. Indeed, even if the court is persuaded that public interest immunity does not apply, the court should nevertheless inspect the document in private to ensure that it does not inadvertently order the disclosure of a document which should in fact remain confidential: see Conway v. Rimmer, [1968] A.C. 910 (H.L.), at p. 971. If, having inspected the document, the court concludes that the contents, or any part of the contents, are not protected by public interest immunity, the court can order production accordingly.
The case continues on the specifics of a Bodner review (judicial review regarding judicial salaries) at paras. 104-120.

. R v Cook

In R v Cook (Ont CA, 2014) the Court of Appeal took the oppourtunity to make the following salutory comments on the nature of 'public interest' privilege, which - if applicable - rendered some evidence inadmissible:
[19] I similarly conclude that public interest privilege does not apply. Public interest privilege involves a claim by a government or an official that certain information should be kept secret. Typical situations involve the need to keep police investigative techniques confidential or the protection and safety of individuals. The Crown has the burden of establishing the need to keep the identity of the author secret. The Crown attempted to satisfy this burden by alleging that the author’s mental health issues, fear of police and fear of retribution engage public interest privilege. However, there is no objective evidence underlying the author’s fears. On the record before us, the Crown’s burden has not been met.


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