Abou-Elmaati et al. v. The Attorney General of Canada et al.

[Indexed as: Abou-Elmaati v. Canada (Attorney General)]

104 O.R. (3d) 81

2011 ONCA 95

Court of Appeal for Ontario,

Sharpe, Watt and Karakatsanis JJ.A.

February 7, 2011

Civil procedure -- Discovery -- Privilege -- Jurisdiction -- Superior Court not having jurisdiction during interlocutory stages of civil proceeding to rule on validity of claim of Crown privilege under s. 38 of Canada Evidence Act -- Jurisdiction to rule on claim of privilege under s. 38 of Act resting exclusively with Federal Court at interlocutory stage -- Section 38 not depriving Superior Court of core jurisdiction protected by s. 96 of Constitution Act as pre- trial discovery was not available against Crown at Confederation -- Canada Evidence Act, R.S.C. 1985, c. C-5, s. 38 -- Constitution Act, 1867, s. 96.

Evidence -- Privilege -- Crown privilege -- Superior Court not having jurisdiction during interlocutory stages of civil proceeding to rule on validity of claim of Crown privilege under s. 38 of Canada Evidence Act -- Jurisdiction to rule on claim of privilege under s. 38 of Act resting exclusively with Federal Court at interlocutory stage -- Section 38 not depriving Superior Court of core jurisdiction protected by s. 96 of Constitution Act as pre-trial discovery was not available against Crown at Confederation -- Motion judge erring in ruling on issue of whether Superior Court judge has jurisdiction to rule on claim of privilege under s. 38 of Act at trial or hearing of application in civil proceeding where party's substantive constitutional rights are at issue -- Record dealing only with pre-trial discovery and not providing concrete factual basis for making important constitutional ruling -- Canada Evidence Act, R.S.C. 1985, c. C-5, s. 38 -- Constitution Act, 1867, s. 96.

The plaintiffs sued Canada in the Superior Court of Justice, alleging that Canada was complicit in their torture and ill- treatment while they were in the custody of foreign governments and that their rights under the Canadian Charter of Rights and Freedoms were violated. Canada disclosed a number of documents which had been redacted pursuant to s. 38 of the Canada Evidence Act ("CEA") on the grounds that the excluded information was potentially injurious to national security, national defence and international relations. Canada applied to the Federal Court under s. 38 of the Act for an order confirming the prohibition on disclosure. While the Federal Court motion was pending, the plaintiffs brought a motion in the Superior Court action for an order for production of unredacted documents. Canada raised a preliminary objection that the Superior Court of Justice did not have jurisdiction to rule on the validity of the federal government's claim of Crown privilege under s. 38 of the Act, as the exclusive jurisdiction to rule on that privilege rested with the Federal Court. The motion judge upheld Canada's preliminary objection and dismissed the plaintiffs' motion for production. He held that s. 38 is constitutionally valid to the extent that it confers exclusive jurisdiction on the Federal Court to determine claims of privilege on grounds of national security, national defence and international relations at the pre-trial state. However, he also declared that where a claim is made to enforce the Constitution (including the Charter) in a civil proceeding, to the extent that s. 38 precludes a judge of the Superior Court of Justice from judicially [page82 ]reviewing a claim of Crown privilege, it is of no force or effect and must be read down accordingly. The Crown appealed and the plaintiffs cross- appealed.

Held, the appeal should be allowed and the cross-appeal should be dismissed.

The jurisdiction that is conferred exclusively on the Federal Court by s. 38 of the CEA did not fall within the power exercised by the Superior Court at the time of Confederation. Pre-trial discovery was not available against the Crown at Confederation, and even after discovery against the Crown was made possible by statute, claims of Crown privilege based upon international relations, national security and national defence were effectively immune from judicial review or scrutiny. Section 38 represents a liberalization of the law of Crown privilege, conferring rights of judicial review that were not available until the predecessor of s. 38 was enacted in 1982. It followed that in relation to pre-trial discovery, s. 38 does not deprive the Superior Court of the core jurisdiction protected by s. 96 of the Constitution Act.

It was unnecessary for the motion judge to consider whether a Superior Court judge has jurisdiction to rule on a claim of privilege under s. 38 of Act at the trial or the hearing of an application in a civil proceeding where a party's substantive constitutional rights are at issue. The record in this case dealt only with pre-trial discovery and did not provide a concrete factual basis for making an important constitutional ruling.

APPEAL AND CROSS-APPEAL from the order of Perell J. (2010), 2010 ONSC 2055, 101 O.R. (3d) 424, [2010] O.J. No. 1405 (S.C.J.) dismissing a motion for production and a ruling on the constitutionality of s. 38 of the Canada Evidence Act.

Cases referred to Reference re Residential Tenancies Act 1979 (Ontario), 1981 CanLII 24 (SCC), [1981] 1 S.C.R. 714, [1981] S.C.J. No. 57, 123 D.L.R. (3d) 554, 37 N.R. 158, J.E. 81-567, 9 A.C.W.S. (2d) 59, apld R. v. Ahmad, 2009 CanLII 84788 (ON SC), [2009] O.J. No. 6166, 257 C.C.C. (3d) 135 (S.C.J.) [Leave to appeal to S.C.C. granted [2009] S.C.C.A. No. 116], distd Other cases referred to Babcock v. Canada (Attorney General), [2002] 3 S.C.R. 3, [2002] S.C.J. No. 58, 2002 SCC 57, 214 D.L.R. (4th) 193, 289 N.R. 341, [2002] 8 W.W.R. 585, J.E. 2002-1314, 168 B.C.A.C. 50, 3 B.C.L.R. (4th) 1, 3 C.R. (6th) 1, 114 A.C.W.S. (3d) 1057; Canada (Attorney General) v. Almalki, [2010] F.C.J. No. 1391, 2010 FC 1106; Canada (Attorney General) v. Khawaja, [2007] F.C.J. No. 1635, 2007 FCA 388, [2008] 4 F.C.R. 3, 228 C.C.C. (3d) 17, 289 D.L.R. (4th) 260, 371 N.R. 88, 165 C.R.R. (2d) 254, 76 W.C.B. (2d) 474, 167 A.C.W.S. (3d) 298; Canada (Attorney General) v. Ribic, [2003] F.C.J. No. 1964, [2005] 1 F.C.R. 33, 2003 FCA 246, 320 N.R. 275, 185 C.C.C. (3d) 129, 61 W.C.B. (2d) 483; Canada (Commission des droits de la personne) v. Canada (Attorney General), 1982 CanLII 161 (SCC), [1982] 1 S.C.R. 215, [1982] S.C.J. No. 3, 134 D.L.R. (3d) 17, 41 N.R. 318, J.E. 82-152, 14 A.C.W.S. (2d) 105; Carey v. Ontario, 1986 CanLII 7 (SCC), [1986] 2 S.C.R. 637, [1986] S.C.J. No. 74, 35 D.L.R. (4th) 161, 72 N.R. 81, 20 O.A.C. 81, 22 Admin. L.R. 236, 30 C.C.C. (3d) 498, 14 C.P.C. (2d) 10; Clark v. Peterborough Utilities Commission (1998), 1998 CanLII 7133 (ON CA), 40 O.R. (3d) 409, [1998] O.J. No. 2915, 112 O.A.C. 390, 81 A.C.W.S. (3d) 175 (C.A.); Conway v. Rimmer, [1968] A.C. 910, [1968] 1 All E.R. 874, [1968] 2 W.L.R. 998 (H.L.); Council of Civil Service Unions v. Minister for the Civil Service, [1985] 1 A.C. 374, [1984] 3 All E.R. 935, [1984] 3 W.L.R. 1174, [1985] I.C.R. 14, [1985] I.R.L.R. 28 (H.L.); Crombie v. R. (1922), 1922 CanLII 576 (ON CA), 52 O.L.R. 72, [1922] O.J. No. 106, [1923] 2 D.L.R. 542 (C.A.); MacMillan Bloedel Ltd. v. Simpson, 1995 CanLII 57 (SCC), [1995] 4 S.C.R. 725, [1995] S.C.J. No. 101, 130 D.L.R. (4th) 385, 191 N.R. 260, [1996] 2 W.W.R. 1, J.E. 96-63, 68 B.C.A.C. 161, 14 B.C.L.R. (3d) 122, 103 C.C.C. (3d) 225, 44 C.R. (4th) 277, 33 C.R.R. (2d) 123, 59 A.C.W.S. (3d) 199, 29 W.C.B. (2d) 160; McEvoy v. New Brunswick (Attorney General), 1983 CanLII 149 (SCC), [1983] 1 S.C.R. 704, [1983] S.C.J. No. 51, 148 D.L.R. (3d) 25, 48 N.R. 228, 46 N.B.R. (2d) 219, 4 C.C.C. (3d) 289, 10 W.C.B. 30; [page83 ]Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), 1995 CanLII 86 (SCC), [1995] 2 S.C.R. 97, [1995] S.C.J. No. 36, 124 D.L.R. (4th) 129, 180 N.R. 1, J.E. 95-945, 141 N.S.R. (2d) 1, 31 Admin. L.R. (2d) 261, 98 C.C.C. (3d) 20, 39 C.R. (4th) 141, 28 C.R.R. (2d) 1, 54 A.C.W.S. (3d) 1115, 27 W.C.B. (2d) 9; Quebec (Attorney General) v. Canada (Attorney General), 1978 CanLII 23 (SCC), [1979] 1 S.C.R. 218, [1978] S.C.J. No. 84, 90 D.L.R. (3d) 161, 24 N.R. 1, 43 C.C.C. (2d) 49, 6 C.R. (3d) 145, 3 W.C.B. 22; Reference re Amendments to the Residential Tenancies Act (N.S.), 1996 CanLII 259 (SCC), [1996] 1 S.C.R. 186, [1996] S.C.J. No. 13, 131 D.L.R. (4th) 609, 193 N.R. 1, J.E. 96-455, 35 Admin. L.R. (2d) 169, 50 R.P.R. (2d) 137, 60 A.C.W.S. (3d) 1142; Tomline v. The Queen (1879), 4 Ex. D. 252 (C.A.); Waverley (Village) v. Nova Scotia (Minister of Municipal Affairs), 1993 NSSC 71, [1993] N.S.J. No. 151, 123 N.S.R. (2d) 46, 10 Admin. L.R. (2d) 267, 16 C.P.C. (3d) 64, 39 A.C.W.S. (3d) 932 (S.C.) Statutes referred to An Act to enact the Access to Information Act and the Privacy Act, to amend the Federal Court Act and the Canada Evidence Act, and to amend certain other Acts in consequence thereof, S.C. 1980-81-82-83, c. 111, s. 4 Canada Evidence Act, R.S.C. 1985, c. C-5, ss. 36.2, 38 [as am.], 39 Canadian Charter of Rights and Freedoms, s. 7 Constitution Act, 1867, s. 96 Crown Liability Act, S.C. 1952-1953, c. 30, s. 14 Federal Court Act, R.S.C. 1970, c. 10 (2nd Supp.), s. 41, (2) Rules and regulations referred to Crown Liability (Provincial Court) Regulations, P.C. 1954-1687, ss. 7, 8 Authorities referred to Hogg, Peter W., and Patrick J. Monahan, Liability of the Crown, 3d ed. (Toronto: Carswell, 2000)

Robert MacKinnon and Zoe Oxaal, for appellant. M. Philip Tunley and Andrea Gonsalves, for respondents.

The judgment of the court was delivered by

[1] SHARPE J.A.: -- This appeal arises from civil actions brought in the Superior Court against Canada by individuals who allege that Canada was complicit in their torture and ill- treatment while they were in the custody of foreign governments and that their rights under the Canadian Charter of Rights and Freedoms were violated. The issue is whether s. 38 of the Canada Evidence Act, R.S.C. 1985, c. C-5 ("CEA"), conferring exclusive jurisdiction on the Federal Court of Canada to review and rule on Canada's claims for privilege on the grounds of national security, national defence and international relations, is constitutionally [page84 ]infirm on the ground that it interferes with the core jurisdiction of the Superior Court, protected by the Constitution Act, 1867, s. 96. Facts

[2] In 2006, the respondent Elmaati and members of his family commenced an action against Canada, claiming, among other things, compensatory damages for alleged breaches of his Charter rights.

[3] Canada disclosed to the respondents' counsel approximately 500 documents, of which 290 were in redacted form. Some of the redactions were made pursuant to s. 38 of the CEA on the grounds that the excluded information was injurious to national security, national defence and international relations. Canada later asserted that it had inadvertently disclosed one document without redactions, gave notice under s. 38 not to disclose the document and asked the respondents' counsel to return it. The respondents' counsel disputed that the document had been disclosed inadvertently and that it was subject to privilege and asserted that the s. 38 notice was void.

[4] The respondents moved in the Superior Court action for an order requiring production of documents without redaction and filed a Notice of Constitutional Question putting in issue the constitutional validity or applicability of s. 38 of the CEA. Canada raised a preliminary objection to the respondents' production motion, arguing that s. 38 deprived the Superior Court of jurisdiction to entertain the motion, and brought a Federal Court application to determine the claims of privilege pursuant to s. 38.

Reasons of the motion judge

[5] The motion judge upheld Canada's preliminary objection and dismissed the respondents' motion for production. He held that s. 38 is constitutionally valid to the extent that it confers exclusive jurisdiction on the Federal Court to determine claims of privilege on grounds of national security, national defence and international relations at the pre-trial stage.

[6] However, the motion judge went on to declare that where a claim is made to enforce the Constitution (including the Charter) in a civil proceeding, to the extent that s. 38 precludes a judge of the Superior Court of Justice at the trial of an action or the hearing of an application from judicially reviewing a claim of Crown privilege, it is of no force or effect and must be read down accordingly. [page85 ]

Proceedings in the Federal Court

[7] Pending this appeal, Canada proceeded with its s. 38 application in the Federal Court to determine the privilege issues in relation to the respondents' request for pre-trial production. On November 8, 2010, Mosley J. delivered comprehensive reasons dealing with Canada's s. 38 claims of privilege: Canada (Attorney General) v. Almalki, [2010] F.C.J. No. 1391, 2010 FC 1106. Mosley J. upheld some of Canada's s. 38 claims but rejected many others.

[8] Mosley J. also dealt with the allegedly inadvertently disclosed document. He held that disclosure of this document was the product of a series of errors in the internal government review and redaction process and that as the disclosure was not deliberate, there was no waiver of the claimed privilege. He upheld the claims of privilege with respect to certain redacted parts of the document but rejected claims of privilege with respect to other parts.

[9] The respondents appear not to take issue with Mosley J.'s order and they have not exercised their right of appeal to the Federal Court of Appeal.

Appeal and cross-appeal

[10] Canada appeals the declaration that s. 38 is of no force or effect to the extent that it deprives a Superior Court judge of the jurisdiction to review a claim of Crown privilege based on national security, national defence and international relations at trial. The respondents cross-appeal the dismissal of their motion for production and the motion judge's determination that s. 38 is valid at the pre-trial stage. Canada moves to quash the cross-appeal with respect to the allegedly inadvertently disclosed document. Issues

[11] The issues arising on the appeal and cross-appeal are [as follows]: (1) Did the motion judge err in dismissing the respondents' pre-trial motion for production and upholding the constitutional validity of s. 38 at the pre-trial stage? (2) Did the motion judge err in declaring that s. 38 was of no force or effect to the extent that it deprived the Superior Court of the power to decide claims of privilege based on national security, national defence and international relations at a trial involving a claim to enforce the Constitution, including the Charter, at trial? [page86 ] (3) Should the cross-appeal with respect to the allegedly inadvertently disclosed document be quashed or dismissed? Analysis 1. Did the motion judge err in dismissing the respondents' motion for production and upholding the constitutional validity of s. 38 at the pre-trial stage?

[12] The motion that led to this appeal was one for pre-trial disclosure and I will deal first with the issue raised by the respondents' cross-appeal.

[13] The respondents do not dispute that s. 38 confers jurisdiction on the Federal Court to determine the public interest immunity claims asserted by Canada in this proceeding. However, the respondents assert that s. 38 is constitutionally infirm insofar as it deprives the Superior Court of jurisdiction to assess and determine those same claims. To succeed in that assertion, the respondents must demonstrate that s. 38 violates the Superior Court's jurisdiction that is constitutionally protected by s. 96.

[14] In Reference re Amendments to the Residential Tenancies Act (N.S.), 1996 CanLII 259 (SCC), [1996] 1 S.C.R. 186, [1996] S.C.J. No. 13, at para. 74, McLachlin J. restated, as follows, the three-part test for determining whether the conferral of jurisdiction on an inferior court or administrative tribunal deprives a s. 96 court of its constitutionally protected jurisdiction, initially laid down by Dickson J. in Reference re Residential Tenancies Act 1979 (Ontario), 1981 CanLII 24 (SCC), [1981] 1 S.C.R. 714, [1981] S.C.J. No. 57, at pp. 734-35 S.C.R.:

(1) does the power conferred "broadly conform" to a power or jurisdiction exercised by a superior, district or county court at the time of Confederation? (2) if so, is it a judicial power? (3) if so, is the power either subsidiary or ancillary to a predominantly administrative function or necessarily incidental to such a function?

[15] McEvoy v. New Brunswick (Attorney General), 1983 CanLII 149 (SCC), [1983] 1 S.C.R. 704, [1983] S.C.J. No. 51 holds that s. 96 applies to limit Parliament as well as the provincial legislatures from removing or devolving protected powers to tribunals or statutory courts.

[16] It is common ground that this case falls to be decided on the first branch of the Residential Tenancies test. In MacMillan Bloedel Ltd. v. Simpson, 1995 CanLII 57 (SCC), [1995] 4 S.C.R. 725, [1995] S.C.J. No. 101, at para. 15, the first branch was refined to relate to what Lamer C.J.C. described as the "core or inherent jurisdiction which is integral to their operations". If the power or jurisdiction at issue falls within that "core", it "cannot be removed from the superior courts by either level of government, without amending the Constitution". [page87 ]

[17] The question, then, is this: was the power or jurisdiction to review claims of Crown privilege on grounds of international relations, national defence and national security exercised by superior, district or county courts at the time of Confederation and was that power or jurisdiction essential to the existence of a superior court of inherent jurisdiction and to the preservation of its foundational role within our legal system?

[18] As the motion judge held, at para. 99, there is a long line of authority to the effect that at common law, there was no pre-trial discovery against the Crown: Tomline v. The Queen (1879), 4 Ex. D. 252 (C.A.); Quebec (Attorney General) v. Canada (Attorney General), 1978 CanLII 23 (SCC), [1979] 1 S.C.R. 218, [1978] S.C.J. No. 84, at pp. 245-46 S.C.R.; Waverley (Village) v. Nova Scotia (Minister of Municipal Affairs), 1993 NSSC 71, [1993] N.S.J. No. 151, 16 C.P.C. (3d) 64 (S.C.), at paras. 33-40; Crombie v. R. (1922), 1922 CanLII 576 (ON CA), 52 O.L.R. 72, [1922] O.J. No. 106 (C.A.), at p. 77 O.L.R. As no discovery of any kind was available against the Crown at the time of Confederation, the issue of public interest privilege could not have arisen until legislation enacted in the 1950s made discovery against the Crown in right of Canada possible (Crown Liability Act, S.C. 1952-1953, c. 30, s. 14; Crown Liability (Provincial Court) Regulations, P.C. 1954-1687, ss. 7-8; Peter W. Hogg and Patrick J. Monahan, Liability of the Crown, 3d ed. (Toronto: Carswell, 2000) at pp. 65-66).

[19] After it became possible to obtain discovery against the Crown, the courts adopted a highly deferential approach to claims of Crown privilege. In particular, deference to ministerial claims of privilege on grounds of national security was absolute. In Conway v. Rimmer, [1968] 1 All E.R. 874, [1968] A.C. 910 (H.L.), Lord Morris stated, at p. 890 All E.R.: "If a responsible Minister stated that production of a document would jeopardise public safety, it is inconceivable that any court would make an order for its production." See, also, Council of Civil Service Unions v. Minister for the Civil Service, [1984] 3 All E.R. 935, [1985] 1 A.C. 374 (H.L.), at p. 944 All E.R.: "the judicial process is unsuitable for reaching decisions on national security"; and, at p. 952 All E.R.: "National security is the responsibility of the executive government . . . . It is par excellence a non-justiciable question." Carey v. Ontario, 1986 CanLII 7 (SCC), [1986] 2 S.C.R. 637, [1986] S.C.J. No. 74 adopted a liberal approach to Ontario's common law regime and held that where class privilege was claimed over cabinet deliberations, courts must weigh the public interest in non-disclosure against the public interest in the proper administration of justice. The court could inspect the documents, balance the competing interests and, where appropriate, order [page88 ]their production. However, La Forest J. pointed out, at p. 671 S.C.R., that a more deferential approach pertained where privilege was claimed on grounds of national security:

If the certificate had particularized that their divulgence should be withheld on the ground, for example, that they relate or would affect such matters as national security or diplomatic relations, that would be another matter. If the certificate was properly framed, the court might in such a case well agree to their being withheld even without inspection . . . . For on such issues, it is often unwise even for members of the judiciary to be aware of their contents, and the period in which they should remain secret may be very long. (Citation omitted)

[20] In 1970, the common law relating to claims by the Crown in right of Canada to privilege in any court was codified by the Federal Court Act, R.S.C. 1970, c. 10 (2nd Supp.), s. 41. With respect to claims of Crown privilege, the court was permitted to examine documents and order disclosure if it concluded that the public interest in the proper administration of justice outweighed the claimed public interest. However, s. 41(2) provided that where the claim was that the production or discovery of a document or its contents would be injurious to, inter alia, international relations, national defence or national security, "discovery and production shall be refused without any examination of the document by the court". This provision withstood a constitutional challenge in Canada (Commission des droits de la personne) v. Canada (Attorney General), 1982 CanLII 161 (SCC), [1982] 1 S.C.R. 215, [1982] S.C.J. No. 3, although there the argument was based on division of powers rather than s. 96. I note as well that in Babcock v. Canada (Attorney General), 2002 SCC 57, [2002] 3 S.C.R. 3, [2002] S.C.J. No. 58, the Supreme Court held that s. 39 of the CEA, depriving any court of the power to review a claim of privilege in relation to confidences of the Privy Council, did not deprive a s. 96 court of its core jurisdiction as the provision did not alter or remove any jurisdiction that was exercised in 1867.

[21] It was not until 1982 and the enactment of s. 36.2 of the CEA, the predecessor of the current s. 38, by S.C. 1980-81-82-83, c. 111, s. 4 that it became possible for a court to review a claim of Crown privilege based upon international relations, national defence or national security. The 1982 amendment responded to a recommendation of the Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police, chaired by Mr. Justice D.C. McDonald and commonly referred to as the "McDonald Commission", that there should be a more liberal approach to disclosure and that the task of assessing [page89 ]national security claims be assigned to the Federal Court. As Canada points out in its submission, s. 38 reflects a significant liberalization of the law of Crown privilege, allowing for a broad regime of judicial review, albeit within the exclusive jurisdiction of the Federal Court, with respect to privilege claims based on international relations and national defence or security.

[22] The operation and effect of the scheme established by s. 38 for the determination of claims made by the Government of Canada for privilege based upon national security, national defence and international relations may be briefly described.

[23] A person, usually a government official, involved in litigation is required to notify the Attorney General if asked to produce information sensitive or potentially injurious to national security, national defence or international relations. The effect of that notice is to prohibit disclosure unless and until disclosure is authorized either by the Attorney General or by a judge of the Federal Court pursuant to the s. 38 scheme.

[24] If the Attorney General does not authorize disclosure, the issue is resolved by the Federal Court, either on application by the Attorney General seeking to protect the information or by the party seeking disclosure. That application is decided by the Chief Justice of the Federal Court or a Federal Court judge designated to conduct s. 38 hearings.

[25] The judge hearing the application decides whether a hearing is required, who should be given notice and who should be given the opportunity to make submissions. The judge has access to unredacted versions of the documents at issue but the party seeking disclosure has access only to the redacted version and the hearing is held in camera. The Attorney General has the right to make ex parte submissions.

[26] The designated judge may appoint amicus curiae and, in this case, Mosley J. did appoint two amicus to assist him in the determination of the claim of privilege.

[27] The designated judge also has the discretion to invite the comments of the person (usually a judge) presiding at the proceeding to which the information relates and that person may provide the designated judge with a report dealing with anything relating to the proceeding that might be of assistance to the designated judge.

[28] A three-part test is applied to determine the s. 38 application (see Canada (Attorney General) v. Ribic, 2003 FCA 246, [2003] F.C.J. No. 1964, [2005] 1 F.C.R. 33 (C.A.), at paras. 17-22; Canada (Attorney General) v. Khawaja, 2007 FCA 388, [2007] F.C.J. No. 1635, [2008] 4 F.C.R. 3 (C.A.), at para. 8): [page90 ] (1) Is the information sought relevant to the proceeding? If no, disclosure is not ordered. If yes, then (2) will disclosure of the information be injurious to national security, national defence or international relations? If no, the information should be disclosed. If yes, then (3) does the public interest in disclosure outweigh the public interest in prohibiting disclosure?

[29] The designated judge has the discretion to craft an appropriate order ordering partial disclosure, disclosure on conditions or disclosure of a summary of the information.

[30] There is an appeal as of right to the Federal Court of Appeal and a further appeal, with leave, to the Supreme Court of Canada.

[31] I assess the relevant historical context and the operation and effect of s. 38 as follows. Pre-trial discovery was not available against the Crown at Confederation, and even after discovery against the Crown was made possible by statute, claims of Crown privilege based upon international relations, national security and national defence were effectively immune from judicial review or scrutiny.

[32] I cannot accept the respondents' contention that Canada is using s. 38 "to be able to violate the Constitution with impunity". Section 38 represents a liberalization of the law of Crown privilege, conferring rights of judicial review that were not available until the predecessor of s. 38 was enacted in 1982. In this case, s. 38 has allowed the respondents to have a judicial assessment of Canada's public interest immunity claims, an assessment they appear to accept as having been thorough and fair and against which they have not exercised their right of appeal. I note that Mosley J. specifically found, at para. 112:

There is no evidence in the record before me to support the respondents' suggestion that the Attorney General has attempted to prevent disclosure of embarrassing information, or information unfavourable to the government's defence in the underlying civil action, through unwarranted national security claims.

[33] Section 38 does not remove anything that falls within the core jurisdiction of the Superior Court and that is protected by s. 96. To the contrary, s. 38 provides for a more generous form of judicial review -- albeit in another court -- of claims of Crown privilege than was ever available in the Superior Court at common law. [page91 ]

[34] I also agree with the motion judge that from the perspective of protecting the Superior Court's "core" jurisdiction, there is little or no practical difference between delegating issues of pre-trial production and disclosure to a master and the regime that assigns that responsibility to the Federal Court. Under either scheme, issues of production and disclosure are determined before the trial by a judicial officer other than the trial judge and the trial judge is left to decide the case on the merits on the basis of the record that has been defined and refined in the pre-trial procedure.

[35] I therefore conclude under the first branch of the test for an infringement of s. 96 that in relation to pre-trial production and discovery, the jurisdiction that is conferred exclusively on the Federal Court by s. 38 did not fall within the power or jurisdiction exercised by the Superior Court at the time of Confederation. It follows that in relation to pre- trial discovery, s. 38 does not deprive the Superior Court of the core jurisdiction protected by s. 96 of the Constitution Act, 1867. 2. Did the motion judge err in declaring that s. 38 was of no force or effect to the extent that it deprived the Superior Court of the power to decide claims of privilege based on national security, national defence and international relations at a trial involving a claim to enforce the Constitution, including the Charter?

[36] The motion judge held that the Superior Court's civil jurisdiction to provide remedies for constitutional violations fell within the core jurisdiction protected by s. 96. He held that it followed that, at trial, the Superior Court must retain jurisdiction to rule on claims of privilege based upon national security, national defence and international relations and that to the extent s. 38 provides otherwise, it is of no force or effect.

[37] For the purposes of this appeal, I will assume, without deciding, that in relation to s. 96, the issue of the Superior Court's constitutionally protected jurisdiction to provide remedies for constitutional violations at trial is distinguishable from the issue of pre-trial production and disclosure that I have just considered.

[38] In my view, it was unnecessary for the motion judge to have ruled on this question in this case. The record in this case deals only with pre-trial discovery. In virtually all cases, issues of privilege will be resolved at the pre-trial discovery phase. As the Federal Court has jurisdiction with respect to pre-trial claims of privilege and as the parties have the right to participate in the [page92 ]s. 38 proceeding before the Federal Court and to appeal any order to the Federal Court of Appeal, and may apply for leave to appeal to the Supreme Court of Canada, the Federal Court's determination of the issue of privilege will amount to res judicata. It is by no means clear exactly how or why privilege issues will arise that were not resolved at the pre-trial discovery phase of the action but that will have to be resolved at trial. The record does not provide a concrete factual basis for making an important constitutional ruling and neither the motion judge nor the respondents have provided us with hypothetical examples.

[39] It is not only unnecessary but also usually unwise to attempt to decide constitutional issues in the absence of a concrete factual situation. As this court stated in Clark v. Peterborough Utilities Commission (1998), 1998 CanLII 7133 (ON CA), 40 O.R. (3d) 409, [1998] O.J. No. 2915 (C.A.), at p. 413 O.R., citing Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), 1995 CanLII 86 (SCC), [1995] 2 S.C.R. 97, [1995] S.C.J. No. 36, at p. 111 S.C.R., "courts should only rule on constitutional issues when it is necessary to do so".

[40] The present case is distinguishable from R. v. Ahmad, 2009 CanLII 84788 (ON SC), [2009] O.J. No. 6166, 257 C.C.C. (3d) 135 (S.C.J.), leave to appeal to S.C.C. granted (sub nom. R. v. F.A.) [2009] S.C.C.A. No. 116, File No. 33066 (June 18, 2009), where Dawson J. held that s. 38 was of no force or effect to the extent that it vests exclusive jurisdiction in the Federal Court to determine privilege claims based upon international relations, national security and defence in respect of a criminal trial in the Superior Court. First, that was a criminal case where such issues are not resolved before trial and the trial judge was confronted with a live dispute as to how and where claims of Crown privilege should be resolved. Second, the argument that s. 38 was of no force or effect to the extent that it deprived the Superior Court of jurisdiction to determine claims of Crown privilege was based primarily on the accused's right to a fair trial guaranteed by s. 7 of the Charter and, as Dawson J. specifically noted, at para. 40, the accused did not rely on the jurisprudence surrounding s. 96 of the Constitution Act, 1867.

[41] Here, the motion judge did not have a concrete factual situation giving rise to the issue and, in my respectful view, in the absence of a concrete case, he erred in declaring s. 38 to be of no force or effect in relation to privilege claims advanced at trial.

[42] Accordingly, I would set aside that portion of the motion judge's order and leave that issue to be decided if and when it arises upon a proper factual foundation where a litigant can present a concrete case that s. 38 interferes with the core jurisdiction of the Superior Court to remedy a breach of the Constitution. [page93 ] 3. Should the cross-appeal with respect to the allegedly inadvertently disclosed document be quashed or dismissed?

[43] As I accept Canada's submission with respect to pre- trial production and disclosure, it follows that the issue of the allegedly inadvertently disclosed document was properly before Mosley J. in the s. 38 proceedings. Mosley J. dealt with the issues arising in connection with that document. Accordingly, it not necessary for us to consider Canada's motion to quash the cross-appeal from that aspect of the motion judge's order and I would simply dismiss that aspect of the cross-appeal. Conclusion Accordingly, I would allow Canada's appeal, set aside para. 2 of the motion judge's order and dismiss the cross-appeal.

[44] If the parties are unable to agree as to the costs of the appeal, they make brief written submissions. Canada shall submit its submissions within 15 days of the release of this judgment and the respondents are to submit their submissions within ten days thereafter.

Appeal allowed; cross-appeal dismissed.