8. Public Interest Immunity

• Author: David M. Paciocco - Lee Stuesser
• Profession: Justice of the Ontario Court of Justice - Professor of Law, Bond University
• Pages: 269-279

Contenidos

• 8. 1) The Common Law.
• 8. 2) Section 37: Issues of a Specified Public Interest.
• 8. 3) Section 38: National Security Issues.
• 8. 4) Section 39: Cabinet and Committee Information.

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Government documents and information may be protected from disclosure when a judge determines that the public interest in preserving the confidentiality of the information prevails over the

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public interest in seeing that litigants have access to all relevant evidence.

It has long been recognized that certain information regarding governmental activities should not be disclosed in the public interest. The protection of this information was once referred to as "Crown privilege," but is now better described as "public interest immunity." It differs from a "privilege" in three respects:

1) The protection is not "owned" by the Crown. Should the Crown fail to object, others, including the presiding judge, may do so in order to safeguard the "public interest."

2) It is said that the Crown cannot waive the protection.¹⁹⁵3) Its primary purpose, unlike for a privilege, is to protect information and not a relationship. Therefore, once the protection is given, no secondary sources may reveal the information.¹⁹⁶Public interest immunity is recognized both at common law and under statute. We will first examine the origins and nature of this protection in the common law, from which we can better understand and appreciate the statutory regime.

8. 1) The Common Law

Under the common law, public interest immunity gives protection to a broad array of government and public body interests, security concerns, cabinet decision making and police matters. The court is called on to balance two competing public interests. On the one hand, it is in the public interest that the administration of justice should not be frustrated by the withholding of relevant information. On the other hand, there are certain government secrets that should not be disclosed in the public interest. In a criminal action, "public interest immunity cannot prevent the disclosure or bar the admissibility of documents that can enable the accused to resist an allegation of crime or to establish innocence."¹⁹⁷The immunity is available in both civil and criminal actions. In a civil action should the protection be rejected, then the state must dis-

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close the information. In a criminal action should the protection be rejected, and the information is material to the case, then the Crown must choose: either the information is disclosed or the charges are stayed.

In the past the need for government secrecy was seen as paramount and, if a minister of the Crown claimed privilege, it was granted by the courts. The role of government has changed. Arms of government now are involved in a wide variety of activities in society. The result is a decline in the perceived need for government secrecy and the demise of absolute protection. Today the courts, under the common law, no longer take the minister’s claim for privilege as final and conclusive. The opinion of the minister must be given due consideration, but, in the end, it is for the court and not the Crown to determine the issue.¹⁹⁸In the usual case, it is the Crown who objects to the disclosure of information, and this is done by way of an affidavit of the appropriate minister or government official. In certain cases, however, such as those involving police concerns, no affidavit is filed and the objection is dealt with by way of evidence from the police officer involved and submissions by counsel. Generally, the objection is based on either the "class" or "content" of the documents. Class objections are concerned with protecting certain types of documents. For example, the government may stake its claim for immunity on the basis that what is sought to be protected are "cabinet documents." The information is not particularized at all. Class claims usually rely on concerns about candour. The "candour argument" is that confidentiality is essential to ensure full, free, and frank discussion of matters of public importance. A second argument put forth is the fear of political interference and harassment should internal documents be prematurely disclosed.¹⁹⁹

Suffice it to say the courts are not enamoured with claims of class protection and, "generally speaking, a claim that a document should not be disclosed on the ground that it belongs to a certain class has little chance of success."²⁰⁰By contrast, a "content" objection seeks to protect specific information "contained" in the documents. Specific concerns are raised, and the courts have a far better understanding as to why the particular information ought not to be disclosed.

The affidavit or evidence provided in support of the objection should be as helpful as possible in identifying the interest sought to be protected. The court can in some cases determine the issue based on the minister’s statement alone. For example, the statement may raise

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concerns of national security or defence, and the court may hold these concerns sufficient without even looking at the documents in dispute. But, in cases of doubt, the judge has the discretion to inspect the documents and should do so.

Carey v. Ontario is the leading case on the common law approach to public interest immunity.²⁰¹This was a civil action that revolved around the failure of a resort in Northwestern Ontario, in which the government had become involved. Carey alleged breach of contract and deceit against the government. He subpoenaed various Cabinet documents that dealt with the funding of the resort. The government claimed these Cabinet discussions were absolutely protected as a "class," and in the supporting affidavit very little information was given as to what was contained in these documents. In the Supreme Court, Justice La Forest confirmed that, under the common law, these documents were not absolutely protected. The judgment then went on to address how courts are to deal with these claims.

It was argued in Carey that the judge ought not to inspect the documents unless the party seeking disclosure can show a "concrete ground for belief" that the material contains information that would substantially assist the party seeking production. The difficulty with this position, as was pointed out by Justice La Forest, is that the party seeking disclosure is in the dark as to what information is to be had. In the case on appeal the documents dealt precisely with the dispute now before the court, and on this basis Justice La Forest was prepared to find that they were likely to assist Carey’s case. He certainly rejected imposing any rigorous prerequisites to the court’s inspection of the documents. "[C]ommon sense must be allowed to creep into the picture," he wrote, and the best way for a judge, where doubt exists, to balance competing interests is to look at the disputed documents and see what they actually contain.²⁰²In terms of balancing the competing interests, Carey provides a list of considerations:

· the level of decision making;

· the nature of the policy discussions;

· the particular contents of the documents;

· the time when the document or information is to be revealed;

· the importance of the case;

· the need or desirability of producing the documents to ensure that the case can be adequately and fairly presented;

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· whether or not the allegations involve government misconduct;²⁰³ and

· the ability to ensure that...