Supreme Court of Canada

Smallwood v. Sparling, [1982] 2 S.C.R. 686

Date: 1982-11-23

The Honourable Joseph Roberts Smallwood (Applicant-Respondent) Appellant;

and

Frederick Herbert Sparling (Respondent-Appellant) Respondent;

and

Luc A. Couture and Robert S. MacLellan (Respondents in first instance)

and

The Attorney General of Canada, the Attorney General for Alberta, the Attorney General of British Columbia, the Attorney General of Manitoba, and the Attorney General for Ontario Interveners.

File No.: 16394.

1982: May 11; 1982: November 23.

Present: Estey, McIntyre, Chouinard, Lamer and Wilson JJ.

ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Evidence—Crown privilege—Federal public inquiry—Restrictive Trade Practices Commission—Former minister subpoenaed—Oral and documentary evidence—Cabinet secrecy—Whether former minister compellable as a witness—Rule of “relative immunity”—Canada Corporation Act, R.S.C. 1970, c. C-32 as amended by R.S.C. 1970 (1st Supp.), c. 10, ss. 114(2), (10)—Inquiries Act, R.S.C. 1970, c. I-13, ss. 4, 5—The House of Assembly Act, R.S.N. 1970, c. 159, s. 19—Senate and House of Commons Act, R.S.C. 1970, c. S-8, ss. 4, 5—Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10,s.41.

Appellant, former Premier and Minister of Newfoundland, subpoenaed to give evidence at an investigation by the Restrictive Trade Practices Commission, applied to the Federal Court Trial Division for an injunction enjoining the respondent or any members of the Commission from acting upon that subpoena. The injunction was granted by the Trial Division but set aside by the Federal Court of Appeal. Hence this appeal to determine the scope of immunity available to a former minister of the Crown in right of a province

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when he has been subpoenaed to present both oral and documentary evidence at a federal public inquiry.

Held: The appeal should be dismissed.

Appellant had no exemption from the universal testimonial duty to give evidence simply by virtue of his status as former Premier and Minister of a province. Nor did he enjoy either by statute or at common law any blanket immunity to give oral testimony or produce documents. His immunity in that regard was relative only and must wait upon the content of the proposed examination. Appellant cannot be the arbiter of his own immunity. This is for the courts. The application in this respect was therefore premature.

Conway v. Rimmer, [1968] A.C. 910; Burmah Oil Co. v. Bank of England, [1979] 3 All E.R. 700 (H.L.); Broome v. Broome, [1955] 1 All E.R. 201; Attorney-General v. Jonathan Cape Ltd., [1975] 3 All E.R. 484; R. v. Snider, 1954 CanLII 40 (SCC), [1954] S.C.R. 479; R. v. Baines, [1909] 1 K.B. 258; R. v. Allerton (1914), 1914 CanLII 377 (BC SC), 17 D.L.R. 294, applied; Attorney General of Quebec and Keable v. Attorney General of Canada, 1978 CanLII 23 (SCC), [1979] 1 S.C.R. 218, distinguished; Duncan v. Cammell, Laird & Co., [1942] A.C. 624, referred to.

APPEAL from a judgment of the Federal Court of Appeal (1980), 1980 CanLII 4224 (FCA), 118 D.L.R. (3d) 143, 34 N.R. 460, [1981] 2 F.C. 521, setting aside an order of the Trial Division granting an injunction. Appeal dismissed.

Joseph Nuss, Q.C., and Brian Riordan, for the appellant.

François Garneau, for the respondent.

T.B. Smith, Q.C., and P.K. Doody, for the intervener the Attorney General of Canada.

Wm. Henkel, Q.C., for the intervener the Attorney General for Alberta.

Howard R. Eddy, for the intervener the Attorney General of British Columbia.

Brian F. Squair, for the intervener the Attorney General of Manitoba.

John Cavarzan, Q.C., for the intervener the Attorney General for Ontario.

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The judgment of the Court was delivered by

WILSON J.—This appeal raises an important issue as to the scope of immunity available to a former minister of the Crown in right of a province when he has been subpoenaed to present both oral and documentary evidence at a federal public inquiry. The circumstances giving rise to this appeal are as follows.

On May 17, 1977, the respondent Sparling was appointed an inspector pursuant to s. 114 of the Canada Corporations Act, R.S.C. 1970, c. C-32, as amended R.S.C. 1970 (1st Supp.), c. 10, to conduct an investigation into the affairs and management of Canadian Javelin Limited (“Javelin”). This is an investigation by the Restrictive Trade Practices Commission (“the Commission”). Mr. Sparling’s mandate reads as follows:

The Commission hereby orders that an investigation be conducted of the affairs and management of Canadian Javelin Limited from the date of its incorporation including, without limiting the generality of the foregoing, the investigation of its source and disposition of capital funds, its maintenance of corporate books and accounting records, its disclosure of financial and other information to shareholders, its compliance with statutory obligations, its acquisition, operation and disposition of its assets and of those of its affiliated companies, the disposition of its shares and of those of its affiliated companies, and its dealing with affiliated companies, and that Mr. Frederick H. Sparling, Director, Corporations Branch, Department of Consumer and Corporate Affairs, be appointed as inspector for that purpose.

On April 25, 1980, the respondent Couture, a member of the Commission, issued a subpoena under s. 114(10) of the Canada Corporations Act to Mr. Smallwood. The subpoena reads as follows:

Upon the Application made by Mr. F.H. Sparling, inspector, pursuant to section 114(10) of the Canada Corporation Act, and pursuant to authority conferred by and under the said Act, you are hereby required and ordered to attend before R.S. MacClellan [sic], Q.C., a member of the Restrictive Trade Practices Commission, or before any other person named by him at the Battery Inn Hotel, Signal Hill Road, St. John’s Newfoundland

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May 13 1980, at 10:00 o’clock in the forenoon and so forth from day to day thereafter as may be required to give evidence upon oath and bring with you the documents more fully particularized hereafter in connection with the above investigation.

The appellant Smallwood is the Honourable Joseph Roberts Smallwood, a former Premier and Minister of the Province of Newfoundland. He applied to the Federal Court Trial Division for an injunction enjoining Messrs. Sparling, Couture and MacLellan from acting upon the subpoena. In support of his application he filed an affidavit containing the following assertions:

5. In my dealings with Canadian Javelin Limited and/or in dealings with third parties involving matters affecting the said Canadian Javelin Limited, I have acted solely in the capacity as representative of Her Majesty the Queen in right of the Province of Newfoundland holding the office of Premier, and/or Minister of Finance, and/or Minister of Economic Development, and/or Minister of Justice and/or Attorney General;

6. Any evidence which I may be called upon to give or documents which I may be called upon to produce before the said R.S. MacLellan, Q.C., can relate only to matters arising out of the carrying out of my duties and responsibilities as representative of Her Majesty the Queen in right of the Province of Newfoundland;

7. Any testimony under oath which I may be called upon to make or any documentation I may be called upon to produce before the said R.S. MacLellan, Q.C., would result in a violation of Crown Privilege, a breach of my oath of office as Minister of Her Majesty the Queen in right of the Province of Newfoundland and/or a violation of the doctrine of Cabinet Secrecy;

8. I shall be obliged to decline to reply to any questions put to me and shall be obliged to decline to produce any documents which may deal with matters relating to the exercise of my duties and responsibilities as a Minister of Her Majesty the Queen in right of the Province of Newfoundland;

9. The giving of testimony and/or the production of documents by me in the proposed examination would disclose a confidence of the Executive Council of the Province of Newfoundland;

10. Moreover, Respondent Luc A. Couture in his quality as member and Vice-Chairman of the Restrictive Trade Practices Commission and Respondent R.S. MacLellan in his quality as member of the Restrictive Trade Practices Commission being a “Federal Board, Commission

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or other Tribunal” as defined in s. 2(g) of the Federal Court Act (R.S.C. 1970, c. 10 (2nd supp.), as amended), have no right to inquire into the affairs and/or dealing of Her Majesty the Queen in right of the Province of Newfoundland as performed by her Ministers;

The Trial Division granted Mr. Smallwood’s application and issued an injunction in the following terms:

THIS COURT DOTH ORDER AND ADJUDGE that each and every one of the Respondents as well as any other persons who shall have notice of this Injunction be and is hereby restrained from endeavouring to compel the attendance by JOSEPH ROBERTS SMALLWOOD to be questioned as a witness before the Respondent R.S. MacLELLAN or the Respondent LUC A. COUTURE or any members of the Restrictive Trade Practices Commission for the purpose of questioning the said JOSEPH ROBERTS SMALLWOOD with respect to or pertaining to any matter in which he was involved or of which he had knowledge in his capacity as Premier of the Province of Newfoundland.

Mr. Sparling’s appeal to the Federal Court of Appeal was allowed and the injunction set aside. Pratte J., speaking for the unanimous Court, rejected the following three arguments advanced by counsel for Mr. Smallwood:

(1) The appellant is merely an inspector appointed under a federal statute who, as such, has no right to inquire into the affairs of Her Majesty the Queen in right of the Province of Newfoundland.

(2) Mr. Smallwood is not a compellable witness in this matter because, being a former Minister of the Crown, he is entitled to invoke the prerogative of the Crown and of Ministers of the Crown not to be compelled either to give discovery in a civil action or to testify in an inquiry.

(3) In any event, any testimony under oath that Mr. Smallwood might be called upon to give would result in a violation of Crown privilege (or public interest immunity), a breach of his oath of office and a violation of the doctrine of Cabinet secrecy.

The appellant was granted leave to appeal to this Court and the following constitutional question was set by order of the Chief Justice:

Does the Restrictive Trade Practices Commission and an inspector conducting an investigation under section 114 of the Canada Corporations Act have the constitu-

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tional authority to enquire into the affairs, dealings or administration of the Crown in right of the Province of Newfoundland as performed by its Premier or other Minister?

The Attorneys General of Canada, Ontario, Quebec, Manitoba, Saskatchewan, Alberta, British Columbia and Newfoundland were granted leave to intervene in these proceedings. The Attorneys General of Quebec, Saskatchewan and Newfoundland subsequently withdrew. The Attorney General of Canada supports the position of the respondent and would answer the Chief Justice’s question in the affirmative. The Provincial Attorneys General support Mr. Smallwood and would answer the question in the negative.

The constitutional question

Section 114 of the Canada Corporations Act provides for the investigation of companies incorporated under the Act. Javelin is such a company. The thirty-two subsections of s. 114 describe the procedure to be followed by the Restrictive Trade Practices Commission in carrying out an investigation. The following subsections are relevant to this appeal:

114. (1) Five or more shareholders holding shares representing in the aggregate not less than one-tenth of the issued capital of the company or one-tenth of the issued shares of any class of shares of the company may apply, or the Minister on his own initiative may cause an application to be made, to the Restrictive Trade Practices Commission established under the Combines Investigation Act (hereinafter called the “Commission”), upon reasonable notice to the company or other interested party or ex parte if the Commission is of the opinion that the giving of notice would in view of the allegations made by the applicants or on behalf of the Minister unduly prejudice any investigation that might be ordered by the Commission, for an order directing an investigation of the company in respect of which the application is made.

(2) Where it is shown to the Commission by the Minister or upon the solemn declaration of the applicant shareholders that there are reasonable grounds for believing that in respect of the company concerned,

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(a) its business or the business of a company affiliated therewith is being conducted with intent to defraud any person;

(b) in the course of carrying on its affairs or the affairs of a company affiliated therewith, one or more acts have been performed wrongfully in a manner prejudicial to the interests of any shareholder;

(c) it or a company affiliated therewith was formed for any fraudulent or unlawful purpose or is to be dissolved in any manner for a fraudulent or unlawful purpose; or

(d) the persons concerned with its formation, affairs or management, or the formation, affairs or management of a company affiliated therewith, have in connection therewith been guilty of fraud, misfeasance or other misconduct,

the Commission may issue its order for the investigation of the company, and appoint an inspector for that purpose.

(10) On ex parte application of the inspector or on his own motion a member of the Commission may order that any person resident or present in Canada be examined under oath before, or make production of any books or papers or other documents or records to the member or before or to any other person named for the purpose by the order of the member, and the member or the other person named by him may make such orders as seem to him to be proper for securing the attendance of such witness and his examination and the production by him of any books or papers or other documents or records, and may otherwise exercise, for the enforcement of such orders or punishment for disobedience thereof, all powers that are exercised by any superior court in Canada for the enforcement of subpoenas to witnesses or punishment of disobedience thereof.

(30) For the purposes of this section, the Commission or any member thereof has all the powers of a commissioner appointed under Part I of the Inquiries Act.

Pursuant to the Inquiries Act, R.S.C. 1970, c. I-13, the Commissioners have the following powers:

4. The commissioners have the power of summoning before them any witnesses, and of requiring them to give evidence on oath, or on solemn affirmation if they are persons entitled to affirm in civil matters, and orally or in writing, and to produce such documents and things as the commissioners deem requisite to the full investiga-

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tion of the matters into which they are appointed to examine.

5. The commissioners have the same power to enforce the attendance of witnesses and to compel them to give evidence as is vested in any court of record in civil cases.

The Commissioners’ mandate orders that an investigation be conducted into the affairs and management of Javelin. It is the company which is the object of the investigation. It may be that much of the company’s business was conducted with the government of Newfoundland but this, in my view, is not sufficient to transform the investigation into an inquiry into the affairs of the Crown in right of Newfoundland. There is nothing to indicate that Mr. Sparling has exceeded his mandate and I would agree with Mr. Justice Pratte when he concluded:

The material filed in support of the application shows that the appellant Sparling was appointed to conduct an investigation of Canadian Javelin Limited and nothing in the record indicates that he exceeded or intends to exceed that mandate. The mere fact that, in the course of his investigation he might oblige a former Minister of a province to testify as to facts known by him in his capacity as Minister, would not change the object of the inquiry and transform it into an inquiry in the administration of that province.

Counsel for the appellant submits, however, that the mandate of the Commissioner was a colourable attempt by the federal government, under the guise of an inquiry pursuant to the Canada Corporations Act, to conduct a probe of the affairs of the government of Newfoundland and he relies on the decision of this Court in Attorney General of Quebec and Keable v. Attorney General of Canada, 1978 CanLII 23 (SCC), [1979] 1 S.C.R. 218. In Keable the Commissioner was given a mandate under the Public Inquiry Commission Act, R.S.Q. 1964, c. 11 to investigate and report on allegedly illegal acts undertaken by various police forces in Quebec including the Royal Canadian Mounted Police. One of the constitutional questions which arose in that case was whether the Order-in-Council defining the mandate of the Commissioner was in whole or in part ultra vires the Province of Quebec. Mr. Justice Pigeon speaking for the majority concluded that the inquiry came within the scope of provin-

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cial authority in the area of “The Administration of Justice in the Province”, but that the Commissioner’s mandate be amended to exclude references to the management of the R.C.M.P. Quoting from his reasons at p. 242:

I thus must hold that an inquiry into criminal acts allegedly committed by members of the R.C.M.P. was validly ordered, but that consideration must be given to the extent to which such inquiry may be carried into the administration of this police force. It is operating under the authority of a federal statute, the Royal Canadian Mounted Police Act, (R.S.C. 1970, c. R-9). It is a branch of the Department of the Solicitor General, (Department of the Solicitor General Act, R.S.C. 1970, c. S-12, s. 4). Parliament’s authority for the establishment of this force and its management as part of the Government of Canada is unquestioned. It is therefore clear that no provincial authority may intrude into its management, while members of the force enjoy no immunity from the criminal law and the jurisdiction of the proper provincial authorities to investigate and prosecute criminal acts committed by any of them as by any other person, these authorities cannot, under the guise of carrying on such investigations, pursue the inquiry into the administration and management of the force. The doctrine of colourability is just as applicable in adjudicating on the validity of a commission’s term of reference or decisions as in deciding on the constitutional validity of legislation. As Viscount Simon said in Attorney General for Saskatchewan v. Attorney General for Canada, 1948 CanLII 317 (UK JCPC), [1949] A.C. 110, (at p. 124) “you cannot do that indirectly which you are prohibited from doing directly”.

(Emphasis added.)

I do not view the mandate of Mr. Sparling as a colourable attempt to investigate the affairs of the Crown in right of Newfoundland. There is nothing whatsoever in the mandate to indicate that the investigation goes beyond an inquiry into the affairs of Javelin. The case is clearly distinguishable from Keable on that basis. I find therefore that the issue raised by the constitutional question does not arise on the facts of this case and the question as set need not be answered.

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I turn now to the more difficult issue raised on this appeal, namely, Mr. Smallwood’s alleged immunity to give oral testimony or produce documents at the inquiry. Mr. Smallwood claims this immunity on three grounds: Crown privilege (public interest immunity), his oath of office and the doctrine of cabinet secrecy.

Campellability as a witness

A preliminary issue which must be determined prior to a consideration of public interest immunity is whether Mr. Smallwood is compellable as a witness. Does he, by virtue of his position as a former Minister, have any special claim which would deny the Commission the right to subpoena him? Wigmore on Evidence, 1961, McNaughton revision, vol. 8, p. 748, states at para. 2370:

2370.(c). Testimonial privilege of the executive not to be a witness. The public (in the words of Lord Hardwicke) has a right to every man’s evidence. Is there any reason why this right should suffer an exception when the desired knowledge is in the possession of a person occupying at the moment the office of chief executive of a state?

There is no reason at all. His temporary duties as an official cannot override his permanent and fundamental duty as a citizen and as a debtor to justice. The general principle of testimonial duty to disclose knowledge needed in judicial investigations is of universal force. It does not suffer an exemption which would apply irrespective of the nature of the person’s knowledge and would rest wholly on the nature of the person’s occupation.

Let it be understood, then, that there is no exemption for officials as such or for the executive as such from the universal testimonial duty to give evidence in judicial investigations. The exemptions that exist are defined by other principles.

(Emphasis added.)

In R. v. Baines, [1909] 1 K.B. 258 subpoenas were issued to the Prime Minister and the Home Secretary to require them to testify in criminal proceedings. They applied to have the subpoenas

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set aside on the basis they had no evidence to give which was relevant to any issue that could arise at the trial. Their applications were allowed on that basis but in the course of his judgment Bigham J. affirmed that (at p. 261):

It must not be supposed that the position which the applicants occupy affords them any privilege. They stand in the same position as any other of His Majesty’s subjects.

The decision in Baines was approved by the British Columbia Supreme Court in R. v. Allerton (1914), 1914 CanLII 377 (BC SC), 17 D.L.R. 294.

It would appear then that at common law a cabinet minister might not be exempted from presenting evidence in a court proceeding merely by virtue of his position as a minister of the Crown. It is necessary to consider whether this has been changed by statute.

The House of Assembly Act, R.S.N. 1970, c. 159, s. 19, provides:

19. The House of Assembly and the members thereof shall hold, enjoy, and exercise such and the like privileges, immunities, and powers as are now held, enjoyed, and exercised by the House of Commons of the Parliament of Canada and by the members thereof.

The Senate and House of Commons Act, R.S.C. 1970, c. S-8 provides:

PRIVILEGES AND IMMUNITIES OF MEMBERS AND OFFICERS

4. The Senate and the House of Commons respectively, and the members thereof respectively, hold, enjoy and exercise,

(a) such and the like privileges, immunities and powers as, at the time of the passing of the British North America Act, 1867, were held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom, and by the members thereof, so far as the same are consistent with and not repugnant to that Act; and

(b) such privileges, immunities and powers as are from time to time defined by Act of the Parliament of Canada, not exceeding those at the time of the passing of such Act held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom and by the members thereof respectively.

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5. Such privileges, immunities and powers are part of the general and public law of Canada, and it is not necessary to plead the same, but the same shall, in all courts in Canada, and by and before all judges, be taken notice of judicially.

It seems to me that these statutes do not provide any immunities which did not exist at common law. Section 41 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10 appears to apply only to documentary privilege and does not expressly create a privilege on the basis of status as a minister of the Crown. Nor does The Oaths of Office Act, R.S.N. 1970, c. 278 purport to create any privilege. I find therefore that the common law has not been changed as far as compellability in a court of law is concerned.

Counsel for Mr. Smallwood, however, raised the issue as to whether Mr. Smallwood was compellable as a witness at a public inquiry as opposed to a court of law. For assistance on this question I return to the judgment of Mr. Justice Pigeon in Keable (supra). Quoting from his reasons at pp. 244-45:

I do not find it necessary to review at great length the numerous authorities cited on the fourth constitutional question. Because, at common law, a commission of inquiry has no power to compel the attendance of witnesses and to require the production of documents, any jurisdiction for such purposes depends on statutory authority, and it seems clear that provincial legislation cannot be effective by itself to confer such jurisdiction as against the Crown in right of Canada. In the recent case of Her Majesty in right of Alberta v. C.T.C. 1977 CanLII 150 (SCC), [1978] 1 S.C.R. 61, Laskin C.J., said with the concurrence of all but two of the other members of the Court (at p. 72):

…a Provincial Legislature cannot in the valid exercise of its legislative power, embrace the Crown in right of Canada in any compulsory regulation.

Appellants submit that the decision of this Court in Regina v. Snider, 1954 CanLII 40 (SCC), [1954] S.C.R. 479, means that a minister of the Crown is a compellable witness at a trial and they point out that under s. 7 of the provincial Act a commissioner has “all the powers of a judge of the Superior Court in term”. This enactment cannot, at least towards federal authorities, have the effect of making an inquiry the legal equivalent of a trial. Such an inquiry is rather in the nature of a discovery and it

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seems to be well established that, at common law, the Crown enjoys a prerogative against being compelled to submit to discovery.

(Emphasis added.)

Accepting on the authority of Keable that an inquiry is in the nature of a discovery, is Mr. Smallwood compellable as a witness at the inquiry? Unfortunately, we received little assistance from counsel on this issue, perhaps because there is a dearth of authority on the subject. While Keable is helpful as to the nature of a public inquiry, it was dealing with the question whether provincial legislation could confer jurisdiction on a commission of inquiry to compel the attendance of federal Crown witnesses. In the instant case we have the converse. Can federal legislation confer jurisdiction on a commission of inquiry to compel the attendance of provincial Crown witnesses? We have no constitutional problem here of the kind which arose in Keable.

Nevertheless Keable suggests that a public inquiry such as we have here may be more in the nature of a discovery than a court proceeding. To that extent therefore the case is helpful to Mr. Smallwood’s cause if counsel is correct that the law already reviewed is applicable only to court proceedings. I do not believe, however, that Keable went that far. But, be that as it may, I think Mr. Smallwood faces a greater hurdle on the issue of his compellability as a witness. He is no longer a minister of the Crown in right of Newfoundland. He is a private citizen and called upon to testify as such. It may be, as will be discussed later in these reasons, that former ministers can claim public interest immunity in some circumstances with respect to specific oral or documentary evidence, but I can find no authority for the proposition that former ministers can claim complete testimonial immunity.

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It seems to me that if I am correct in holding that the conduct of the inquiry is within the constitutional authority of the Restrictive Trade Practices Commission under the Canada Corporations Act because it is an inquiry into the affairs and management of Javelin, then there is no basis for Mr. Smallwood’s claim to complete testimonial immunity. As was pointed out by Wigmore, he did not have it at common law in respect of court proceedings. Nor does he have it by statute. I see no reason therefore why he should not be amenable to subpoena if he has relevant evidence to contribute towards a validly constituted federal inquiry conducted in the public interest. In so saying, of course, I do not prejudge the scope of his right to claim Crown privilege with respect to particular oral or documentary disclosures if such is legally available to him. This is the next issue I propose to address.

Documentary evidence

There is no statute in Newfoundland dealing with the privilege of the Crown in right of the province. It is necessary therefore to turn to the common law. The common law with respect to privilege vis-à-vis documentary evidence seems to be fairly clear.

The leading Canadian authority, is R. v. Snider, 1954 CanLII 40 (SCC), [1954] S.C.R. 479 in which this Court affirmed the right of the court to examine documents to ascertain whether there might be prejudice to the public interest in their disclosure. In Snider the Director of Taxation for the District of Vancouver was subpoenaed to give oral evidence and to produce the income tax returns of the accused in a criminal proceeding. The Minister of National Revenue objected. The following passage from the judgment of Rand J. at p. 482 delimits the scope of Crown privilege in this area:

What is in debate are confidential communications and, for a better understanding of the question, the distinction is to be kept in mind between them and the matter which they deal with or express, that is, there may be confidential or secret matter apart from that of

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the communications themselves but to which they relate, or the secrecy may exist as to the matters which the communications themselves create or indeed to the fact of the communication alone. It requires as its essential condition that there be a public interest recognized as overriding the general principle that in a court of justice every person and every fact must be available to the execution of its supreme functions. As Lord Chancellor Hardwicke, in speaking against the Bill For Indemnifying Evidence, Cobbett’s Parliamentary History 12, 675, 693, 1742, declared:

It has, my lords, I own, been asserted by the noble duke that the public has a right to every man’s evidence—a maxim which in its proper sense cannot be denied. For it is undoubtedly true that the public has a right to all the assistance of every individual.

And this applies as fully to the private suitor or an accused as to the public. The privilege is one to be asserted by or on behalf of a person or persons including the Crown to whose benefit it enures, and it may be waived only by the beneficiary; if the disclosure is proposed in a proceeding between third parties, the court itself must interpose to safeguard the privilege.

It springs, then, from a confidential communication coupled with a paramount public interest in permitting the secrecy surrounding the communication or its contents to be maintained.

(Emphasis added.)

The conclusion of the Court is perhaps best summarized at pp. 485-86 of Rand J.’s judgment:

Once the nature, general or specific as the case may be, of documents or the reasons against its disclosure, are shown, the question for the court is whether they might, on any rational view, either as to their contents or the fact of their existence, be such that the public interest requires that they should not be revealed; if they are capable of sustaining such an interest, and a minister of the Crown avers its existence, then the courts must accept his decision. On the other hand, if the facts, as in the example before us, show that, in the ordinary case, no such interest can exist, then such a declaration of the minister must be taken to have been made under a misapprehension and be disregarded. To eliminate the courts in a function with which the tradition of the common law has invested them and to hold them subject to any opinion formed, rational or irrational, by a

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member of the executive to the prejudice, it might be, of the lives of private individuals, is not in harmony with the basic conceptions of our polity. But I should add that the consequences of the exclusion of a document for reasons of public interest as it may affect the interest of an accused person are not in question here and no implication is intended as to what they may be.

What is secured by attributing to the courts this preliminary determination of possible prejudice is protection against executive encroachments upon the administration of justice; and in the present trend of government little can be more essential to the maintenance of individual security. In this important matter, to relegate the courts to such a subserviency as is suggested would be to withdraw from them the confidence of independence and judicial appraisal that so far appear to have served well the organization of which we are the heirs. These are considerations which appear to me to follow from the reasoning of the Judicial Committee in Robinson v. South Australia 1931 CanLII 605 (UK JCPC), [1931] A.C. 704.

(Emphasis added.)

It should be noted that this decision predates the House of Lord’s decision in Conway v. Rimmer, [1968] A.C. 910 and was decided at a time when the prevailing law was that of absolute immunity as recognized in Duncan v. Cammell, Laird & Co., [1942] A.C. 624.

Conway v. Rimmer (supra) remains the authority in England on this issue. It affirms the “relative immunity” position. However, of note are some comments made in the case with respect to cabinet minutes. They cannot be disclosed until such time as they are of historical interest (per Lord Reid at p. 952). Similar comments appear at p. 973 per Lord Hodson, at p. 987 per Lord Pearce and at p. 993 per Lord Upjohn.

Perhaps the most useful authority as far as its factual similarities to the present case are concerned is Burmah Oil Co. v. Bank of England, [1979] 3 All E.R. 700 (H.L.). In that case Burmah Oil had brought an action against the Bank to set aside a sale of stock. The list of documents prepared by the Bank included docu-

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ments which disclosed the part played by the government in the transaction between Burmah and the Bank and the advice received by the government. At the request of the Crown the Bank objected to discovery of some sixty-two documents. The documents were divided into three categories and the claims for privilege were advanced as follows:

Category A

These consist of communications between, to and from Ministers (including Ministers’ Personal Secretaries acting on behalf of Ministers) and minutes and briefs for Ministers and memoranda of meetings attended by Ministers. All such documents relate to the formulation of the policy of the Government… [the Minister thereafter sets out various aspects of government policy in relation to the financial difficulties of Burmah].

Category B

These consist of communications between, to and from senior officials of the Department of Energy, of the Treasury, and of the Bank including memoranda of meetings of and discussions between such officials, and drafts prepared by such officials (including drafts of minutes and briefs comprised in Category A), all such communications and drafts relating to the formulation of one or more aspects of the policy described in Caterory A.

Category C

These consist of memoranda of telephone conversations and meetings between senior representatives of major companies and other businessmen on the one hand and a Minister or senior officials of government departments and of the Bank on the other and memoranda of meetings of such officials and briefs for Ministers and drafts of such briefs, all recording or otherwise referring to commercial or financial information communicated in confidence by such company representatives and businessmen.

The action was subsequently narrowed to ten documents falling within Categories A and B. These were mainly minutes of meetings attended

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by bank and government officials some of whom were ministers.

It was held that when a claim of privilege is made in respect of documents which are prima facie relevant to the issues before the court, the court must review the documents in order to balance the competing interests of preventing harm to the state or the public service by disclosure and preventing frustration of the administration of justice by withholding disclosure.

The decision of the House of Lords is of interest in two aspects. First, the action took place at the discovery stage and the Crown was not a party to the original action. Edmund-Davies L.J. made the following comments at p. 720:

There is a further feature in this case which it would be pusillanimous to ignore. It consists in the fact that this is not one of those cases where the complete detachment of the party resisting disclosure is beyond doubt. It is true that the government is not a party to these proceedings, but it would be unrealistic to think that the conduct of government’s servants and advisers nowise enters into this case. Not only is it the fact that the Bank, left to its own devices, would have complied in full with Burmah’s request for discovery, but its only opponent (through the intervention of the Attorney-General) is the government, whose own role must inevitably and inescapably be scrutinised and may be subjected to criticism. Accordingly, since not only justice itself but also the appearance of justice is of considerable importance, the balancing exercise is bound to be affected to some degree where the party objecting to discovery is not a wholly detached observer of events in which it was in no way involved. It cannot realistically be thought that the government is wholly devoid of interest in the outcome of these proceedings. On the contrary, it has a very real and lively interest, for were Burmah to succeed it could only be on the basis that the Bank behaved unconscionably, and the evidence indicates that the Bank was acting throughout in accordance with government instructions.

(Emphasis added.)

[Page 704]

Second, the House of Lords unanimously recognized that these were documents which belonged to a “class” of documents which would, according to Conway v. Rimmer (supra), be absolutely protected from production as being “cabinet minutes and the like”. Nevertheless, their decision that the documents should not be disclosed was taken after the documents had been examined and seems to have been based on their finding that the documents were not relevant to the issue between Burmah and the Bank. It does not appear to have been based on any absolute principle of public interest immunity. The decision indicates that it is the role of the courts, not the administration, to determine whether disclosure of the documents would be injurious to the public interest.

Oral evidence

Having concluded that there is no absolute privilege vis-à-vis the documents, I must now determine whether the same principle applies to oral testimony. Halsbury’s Laws of England, vol. 17, 4th ed., 1976, at p. 167 states:

238. Official communications. Secrets of state, state papers, confidential official documents and communications between the government and its officers or between such officers are inadmissible evidence if their disclosure would be contrary to the public interest.

The same principle applies to oral evidence, although it will normally not be possible to prevent a witness from giving evidence entirely, since he may be able to give both evidence protected by this rule and other relevant evidence; thus an application by the Crown to set aside a subpoena to such a witness will be refused.

In Duncan v. Cammell, Laird & Co. (supra) Viscount Simon L.C. stated at p. 643:

The present opinion is concerned only with the production of documents, but it seems to me that the same principle must also apply to the exclusion of evidence which, if given, would jeopardize the interests of the community.

This statement was cited with approval in the decision of Sachs J. in Broome v. Broome, [1955]

[Page 705]

1All E.R. 201. In that case Mrs. Broome, in the course of a petition for divorce, required information from the Soldiers’, Sailors’, and Airmen’s Families Association. Subpoenas were issued to Mrs. Allsop, a member of the Association, and to the Secretary of State requesting documents. The claim of the Crown requesting privilege vis-à-vis Mrs. Allsop’s testimony failed on a procedural ground but in the course of his judgment Sachs J. made the following observations at pp. 205-06:

When, however, one had regard to the issues which were being contested in the present case, it was obvious that the case had so developed that the evidence of Mrs. Allsop might well be relevant to points which had arisen before there was any occasion for reconciliation between the parties. Thus there were disputes both as to what accommodation could have been secured by the husband at the time when his wife arrived in Hong Kong; as to whether or not the accommodation he in fact secured was reasonable accommodation in the circumstances; and as to matters relating to general conditions in Hong Kong. Until questions were put to the witness it was obviously impossible to tell whether or not they came within the area of S.S.A.F.A. activities for which the Minister of War was stated to desire protection. An application to set aside the subpoena would, if granted, have prevented the witness even being sworn, and would certainly have prevented her having given evidence on any fact, whether or not it was one against the public interest to disclose. Further, any certificate in a “blanket form” which stopped a witness going into the witness-box seems contrary in principle to those portions of the decided cases which enjoin Ministers before giving a certificate as regards documents to examine each in turn in the light of the issues arising in the case.

In those circumstances it seemed to me that even if it was within the competence of a Minister of the Crown to prevent a witness giving evidence on some set of facts or class of facts, it was surely wrong to adopt a procedure which would prevent the witness giving any evidence whatsoever of any sort. Certainly nothing in R. v. Baines assisted counsel, as the present subpoena did not refer to a witness who could give no relevant evidence, nor was the subpoena oppressive in any way. Accordingly, I ruled that the application to set aside the subpoena failed.

(Emphasis added.)

[Page 706]

It appears to me that, in the absence of any statutory provision which would override the common law, the rule with respect to oral testimony is the same as the rule with respect to documents, i.e. it is the rule of “relative immunity”.

Cabinet secrecy

The other basis of Mr. Smallwood’s claim to immunity is the doctrine of cabinet secrecy. The concept of cabinet secrecy and collective cabinet responsibility was discussed in Attorney‑General v. Jonathan Cape Ltd., [1975] 3 All E.R. 484. In that case Mr. Crossman who had been a cabinet minister from 1964 to 1970 had kept diaries which he intended to publish. After his death in 1974 a firm of publishers wished to publish the diaries and a newspaper published serialized extracts from them. The Attorney General brought actions seeking permanent injunctions restraining these publications on the basis that they were of a confidential nature. This confidentiality was premised on the doctrine of joint cabinet responsibility.

Lord Widgery C.J. denied the Attorney General’s request. The purpose of the doctrine is, of course, to maintain the confidentiality of the views of individual cabinet ministers in reaching joint decisions. Lord Widgery held, however, that there was a time limit on the application of the doctrine. His conclusions are summarized in the following passage from his judgment at pp. 495-96:

Applying those principles to the present case, what do we find?

1. In my judgment, the Attorney-General has made out his claim that the expression of individual opinions by cabinet ministers in the course of cabinet discussion are matters of confidence, the publication of which can be restrained by the court when this is clearly necessary in the public interest.

2. The maintenance of the doctrine of joint responsibility within the cabinet is in the public interest, and the application of that doctrine might be prejudiced by premature disclosure of the views of individual ministers.

3. There must, however, be a limit in time after which the confidential character of the information, and the

[Page 707]

duty of the court to restrain publication, will lapse. Since the conclusion of the hearing in this case I have had the opportunity to read the whole of volume I of the diaries, and my considered view is that I cannot believe that the publication at this interval of anything in volume I would inhibit free discussion in the cabinet of today, even though the individuals involved are the same, and the national problems have a distressing similarity with those of a decade ago. It is unnecessary to elaborate the evils which might flow if at the close of a cabinet meeting a minister proceeded to give the press an analysis of the voting, but we are dealing in this case with a disclosure of information nearly 10 years later.

It may, of course, be intensely difficult in a particular case, to say at what point the material loses its confidential character, on the ground that publication will no longer undermine the doctrine of joint cabinet responsibility. It is this difficulty which prompts some to argue that cabinet discussions should retain their confidential character for a longer and arbitrary period such as 30 years, or even for all time, but this seems to me to be excessively restrictive. The court should intervene only in the clearest of cases where the continuing confidentiality of the material can be demonstrated. In less clear cases—and this, in my view, is certainly one—reliance must be placed on the good sense and good taste of the minister or ex-minister concerned.

In the present case there is nothing in Mr. Crossman’s work to suggest that he did not support the doctrine of joint cabinet responsibility. The question for the court is whether it is shown that publication now might damage the doctrine notwithstanding that much of the action is up to 10 years old and three general elections have been held meanwhile.

(Emphasis added.)

On the authority of the Cape case (supra) it seems to me that the onus would be on Mr. Smallwood to establish that the public interest in joint cabinet responsibility would be prejudiced by any particular disclosure he was being asked to make. Any blanket claim to immunity on this basis must, in my view, also fail.

In summary, it seems to me that for the above reasons the injunction issued by the Federal Court, Trial Division, was properly set aside by the Feder-

[Page 708]

al Court of Appeal. Mr. Smallwood has no exemption from the universal testimonial duty to give evidence simply by virtue of his status as former Premier and Minister of the Province of Newfoundland. Nor does he enjoy either by statute or at common law any blanket immunity to give oral testimony or produce documents. His immunity in that regard is relative only and must wait upon the content of the proposed examination. Mr. Smallwood cannot be the arbiter of his own immunity. This is for the courts. The application in this respect was therefore premature.

I would dismiss the appeal with costs.