CHAPTER 3
EVIDENCE
3.3 Admissibility of Evidence
3.3.3 The public interest administrative privilege
Traditionally, the Crown, i.e., the Executive, enjoyed a privilege under which, even in judicial proceedings, it could choose not to disclose documents or information if it believed such disclosure would not be in the public interest. The case law has narrowed the scope of this privilege and it is now codified in the Canada Evidence Act (s. 37).
Under that Act, a minister 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." Only a superior court may determine whether the certification is well founded. Thus, if the affidavit is filed in an administrative tribunal, then depending on whether the tribunal is federal or provincial, the issue must either be referred to the Federal Court or a provincial superior court. If the objection was made on the basis that disclosure would be "injurious to international relations or national defence or security," the objection may be determined only by the Chief Justice of the Federal Court, or such other judge of that Court as the Chief Justice may designate (s. 38). Last, if the affidavit was filed by a minister of the Crown or the Clerk of the Privy Council, disclosure of the information must be "refused without examination or hearing of the information by the court, person or body." The Act specifies what is meant by confidential Privy Council information (s. 39).
Objections of this kind can only be heard by tribunals or bodies that have the power to compel the production of documents. Thus, boards of referees generally cannot hear them.
In a case involving the first category of objection, it was held the applicant must establish a relationship between the content of the documents and the objective sought. A court will dismiss the government's objection if the citizen needs to know the allegations against him or her in a disciplinary proceeding or a parole hearing, unless the disclosure would reveal an informant's identity.
The Federal Court has held it has the power to examine documents, and in some cases to dispense with such an examination, in cases involving objections to protect international relations or national defence or security. The claimant must show that the interests of justice outweigh the protection contemplated in the legislation. The court must consider the immediate purpose of the request for information, how important disclosure would be to achieve the objective sought, the relevance of that objective in the dispute, and the financial, social and moral interest at stake.
Based on the view that no public interest is more important than national security, the Federal Court has been disinclined to deny this protection.447 It is in fact the minister, not the judge, who must invoke it, by means of a duly prepared certificate, not based on a practice rule. Unless the government pleads immunity, it is subject to the general rules that allow documents to be subpoenaed.
In a case involving the protection of confidential Cabinet information under s. 37 of the Act, the Federal Court of Appeal distinguished between the disclosure of the information and its admission into evidence. The provision only contemplates disclosure. And Parliament's intent was to limit considerably the absolute discretion enjoyed by the Executive under the law as it existed beforehand. Parliament has specified the meaning of Cabinet documents and information and has provided for exceptions. Thus, the Court has a kind of supervisory function, which allows it, inter alia, to verify that objections comply with the letter of the law.
Canada also has an Official Secrets Act that applies to administrative tribunals and could prevent certain state secrets from being admitted.448
The Board of Referees does not have the power to compel the government to do anything. It must apply to the Federal Court if it wishes to do so. A claimant or other citizen who needs information which the government refuses to disclose may also make a request to the chairperson of the Board of Referees pursuant to s. 82 of the EI Regulations, and the chairperson may refer any issue in this regard to the Commission for investigation and report. The Access to Information Act449 is also available to citizens.
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