Babcock et al. v. Canada (Attorney General) et al., (2002) 289 N.R. 341 (SCC)

• Judge: McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ.
• Court: Supreme Court of Canada
• Case Date: Thursday July 11, 2002
• Jurisdiction: Canada (Federal)
• Citations: (2002), 289 N.R. 341 (SCC);2002 SCC 57;[2002] ACS no 58;114 ACWS (3d) 1057;289 NR 341;[2002] 8 WWR 585;[2002] SCJ No 58 (QL);275 WAC 50;214 DLR (4th) 193;[2002] CarswellBC 1576;168 BCAC 50;JE 2002-1314;[2002] 3 SCR 3;3 CR (6th) 1;3 BCLR (4th) 1

Babcock v. Can. (A.G.) (2002), 289 N.R. 341 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2002] N.R. TBEd. JL.023

Attorney General of Canada on behalf of Her Majesty the Queen in Right of Canada and in his capacity as Minister of Justice, the Treasury Board of Canada and the Deputy Minister of Justice (appellants) v. Patricia Babcock, Linda Bell, Victoria Bryan, Lynn Burch, Karl Burdak, George Carruthers, Gordon Carscadden, Margaret E.T. Clare, Timothy W. Clarke, Moyra Dhaliwal, Mary Jane Dodge, Jonas Dubas, S. David Frankel, Greg D. Franklin, Valerie Hartney, Bruce Hilchey, John Kennedy, Digby Kier, Daniel L. Kiselbach, Ingeborg E. Lloyd, Josephine Loncaric, John Loo, William Mah, Ian McKinnon, Robert Moen, Nancy Oster, Michael Owens, Brent Paris, Darlene Patrick, Paul Pelletier, David Prest, Brian Purdy, Christopher Randall, Brian Sedgwick, Karen Shirley, Pamela Lindsay Smith, Tim Stokes, Cory Stolte, Josée Tremblay, Karen A. Truscott, Max Weder, Harry Wruck and Wendy Yoshida (respondents) and Attorney General of British Columbia, the Attorney General for Alberta, the Information Commissioner of Canada and the British Columbia Civil Liberties Association (intervenors)

Attorney General of Canada on behalf of Her Majesty the Queen in Right of Canada and in his capacity as Minister of Justice, Treasury Board of Canada and Deputy Minister of Justice (appellants) v. Rosemary Lutter and Emily Reid (respondents) and Attorney General of British Columbia, Attorney General for Alberta, Information Commissioner of Canada and British Columbia Civil Liberties Association (intervenors)

(28091; 2002 SCC 57; 2002 CSC 57)

Indexed As: Babcock et al. v. Canada (Attorney General) et al.

Supreme Court of Canada

McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ.

July 11, 2002.

Summary:

The plaintiffs were Vancouver staff law­yers with the federal Department of Justice. They sued the federal government for dam­ages for breach of contract and breach of fiduciary duty respecting the salary differ­ential between them and Toronto staff law­yers. The government filed a s. 39 Canada Evidence Act certificate refusing to produce certain documents. Seventeen of the 51 documents in the certificate had already been disclosed or were in the plain­tiffs' pos­session. Section 39 provided abso­lute immu­nity, without regard to the public interest, from disclosure of documents containing Cabinet confidences. The plain­tiff sought production of the documents and of a Trea­sury Board representative for examination for discovery. The plaintiffs asserted that (1) the Act did not apply to a British Columbia civil breach of contract proceeding; (2) the government waived the right to invoke s. 39 respecting all 51 doc­uments by disclosing some of them and adducing evidence on subjects purportedly covered by the s. 39 certificate; and (3) s. 39 was unconstitu­tional.

The British Columbia Supreme Court, in a judgment reported 20 B.C.T.C. 81, dis­missed the application. The Act applied to the civil proceeding where the subject matter of the dispute fell under federal jurisdiction. There was no waiver by dis­closure of documents or through oral dis­covery. Accordingly, the government was entitled to invoke s. 39(1) for documents not disclosed. Finally, the court rejected the submission that s. 39(1) was unconsti­tutional. The plaintiffs appealed.

The British Columbia Court of Appeal, Southin, J.A., dissenting, in a judgment reported 142 B.C.A.C. 161; 233 W.A.C. 161, allowed the appeal and ordered that the defendants produce all documents with­held under s. 39 and that a government represen­tative attend for examination. The govern­ment appealed.

The Supreme Court of Canada allowed the appeal in part. Section 39(1) applied only to compel disclosure. Section 39(1) could not be applied retroactively to docu­ments previ­ously disclosed. However, waiver was inap­plicable. The disclosure of some documents did not preclude the invo­cation of s. 39(1) for other undisclosed documents. Finally, the constitutional chal­lenge to s. 39(1) was denied.

Constitutional Law - Topic 114

Definitions - Rule of law - Section 39(1) of the Canada Evidence Act provided absolute immunity, without regard to the public interest, from disclosure of docu­ments containing Cabinet confidences upon the filing of a certificate by the Clerk of the Privy Council - The Supreme Court of Canada held that s. 39(1) was not unconsti­tutional - The court stated that "s. 39 does not offend the rule of law or the doctrines of sepa­ration of powers and the indepen­dence of the judiciary. It is well within the power of the legislature to enact laws, even laws which some would consider draco­nian, as long as it does not fundamentally alter or interfere with the relationship between the courts and the other branches of gov­ernment." - Further, Parliament's decision to limit superior courts from compelling disclosure of Cabinet confi­dences did not impermissibly invade the core jurisdiction of the superior courts." - See paragraphs 53 to 61.

Constitutional Law - Topic 402

Powers of Parliament and the legislatures -General - Parliamentary supremacy - [See Constitutional Law - Topic 114].

Constitutional Law - Topic 8627

Judicial power - Appointment of judges (s. 96) - Disclosure of Cabinet confi­dences - [See Constitutional Law - Topic 114].

Crown - Topic 2208

Crown privilege or prerogative - General - Cabinet confidences (incl. Cabinet dis­cus­sions) - [See first Crown - Topic 2243].

Crown - Topic 2243

Crown privilege or prerogative - Produc­tion of documents - Certificate of Crown Minister or Privy Council Clerk - Section 39(1) of the Canada Evidence Act pro­vided for absolute Crown immunity from disclosure of certified Cabinet confi­dences, without regard to the public in­terest - The federal Crown, as defendant, claimed s. 39 privilege for 51 documents - Seventeen of those documents had previously been disclosed or were in the possession of the plaintiffs - The Crown claimed retroactive protection of the 17 documents - The Supreme Court of Canada held that s. 39(1) could not be applied retroactively to protect documents already disclosed - However, disclosure of the 17 documents did not constitute waiver of the right to invoke s. 39(1) for the remaining 34 docu­ments - Common law waiver did not apply - See para­graphs 1 to 52.

Crown - Topic 2243

Crown privilege or prerogative - Produc­tion of documents - Certificate of Crown Minister or Privy Council Clerk - Section 39(1) of the Canada Evidence Act pro­vided absolute immunity, without regard to the public interest, from disclosure of documents containing Cabinet confi­dences upon the filing of a certificate by the Clerk of the Privy Council - The Supreme Court of Canada stated that "certification is gen­erally valid if (1) it is done by the Clerk or minister; (2) it relates to information with­in s. 39(2); (3) it is done in a bona fide exercise of dele­gated power; (4) it is done to prevent disclosure of hitherto confiden­tial infor­mation. ... 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 date, title, author and recipient of the document containing the information should normally be disclosed. ... if the documents containing the information are properly identified, a person seeking pro­duction and the court must accept the Clerk's determination." - See paragraphs 27 to 28.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents -[See first Crown - Topic 2243].

Practice - Topic 4579

Discovery - What documents must be produced - Privileged documents - State or public documents - [See first Crown - Topic 2243].

Practice - Topic 4585

Discovery - What documents must be produced - Privileged documents - Waiver - [See first Crown - Topic 2243].

Cases Noticed:

Singh v. Canada (Attorney General), [2000] 3 F.C. 185; 251 N.R. 318 (C.A.), refd to. [para. 18].

Carey v. Ontario et al., [1986] 2 S.C.R. 637; 72 N.R. 81; 20 O.A.C. 81, refd to. [para. 18].

Roncarelli v. Duplessis, [1959] S.C.R. 121, refd to. [para. 20].

Duncan v. Cammell, Laird & Co., [1942] A.C. 624 (H.L.), refd to. [para. 26].

Leeds et al. v. Alberta (Minister of the Environment) et al. (1990), 106 A.R. 105; 69 D.L.R.(4th) 681 (Q.B.), refd to. [para. 26].

Sankey v. Whitlam (1978), 142 C.L.R. 1 (Austl. H.C.), refd to. [para. 26].

Makanjuola v. Commissioner of Police of the Metropolis, [1992] 3 All E.R. 617 (C.A.), refd to. [para. 32].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1995] 3 S.C.R. 199; 187 N.R. 1, refd to. [para. 36].

Human Rights Commission v. Canada (Attorney General) et al., [1982] 1 S.C.R. 215; 41 N.R. 318, refd to. [para. 55].

Reference Re Residential Tenancies Act (N.S.), [1996] 1 S.C.R. 186; 193 N.R. 1; 149 N.S.R.(2d) 1; 432 A.P.R. 1, refd to. [para. 59].

MacMillan Bloedel Ltd. v. Simpson et al., [1995] 4 S.C.R. 725; 191 N.R. 260; 68 B.C.A.C. 161; 112 W.A.C. 161, refd to. [para. 59].

R. v. Eldorado Nuclear Ltd.; R. v. Uranium Canada Ltd., [1983] 2 S.C.R. 551; 50 N.R. 120; 1 O.A.C. 243, refd to. [para. 60].

Statutes Noticed:

Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 39 [para. 7].

Authors and Works Noticed:

Salisbury, Lord, Report of the Committee of Privy Counsellors on Ministerial Memoires (January 1976), p. 13 [para. 18].

Counsel:

David Sgayias, Q.C., and Christopher Rupar, for the appellants;

Richard R. Sugden, Q.C., and Craig P. Dennis, for the respondents;

George H. Copley, Q.C., for the intervenor, Attorney General of British Columbia;

James C. Robb, Q.C., for the intervenor, Attorney General for Alberta;

Daniel Brunet, for the intervenor, Infor­mation Commissioner of Canada;

Joseph J. Arvay, Q.C., and Christopher Jones, for the intervenor, British Columbia Civil Liberties Association.

Solicitors of Record:

Morris Rosenberg, Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the appellants;

Sugden, McFee & Roos, Vancouver, British Columbia, for the respondents;

Attorney General of British Columbia, Victoria, British Columbia, for the intervenor, Attorney General of British Columbia;

Attorney General for Alberta, Edmonton, Alberta, for the intervenor, Attorney General for Alberta;

Information Commissioner of Canada, Ottawa, Ontario, for the intervenor, Information Commissioner of Canada;

Arvay Finlay, Victoria, British Colum­bia, for the intervenor, British Colum­bia Civil Liberties Association.

This appeal was heard on February 20, 2002, before McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastar­ache, Binnie, Arbour and LeBel, JJ., of the Supreme Court of Canada.

On July 11, 2002, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

McLachlin, C.J.C. (Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ., concurring) - see paragraphs 1 to 63;

L'Heureux-Dubé, J. - see paragraphs 64 to 65.