RAND,
J.
(The
Chief
Justice
concurs)
:—This
reference
raises
an
important
question
of
the
right
of
the
Minister
of
National
Revenue
to
object
to
the
production
before
a
court
of
the
income
returns
of
a
person
charged
in
criminal.
proceedings
;
and
since
there
are
many
aspects
to
the
general
question
of
privilege
claimed
by
the
Crown
in
relation
to
which
different
considerations
must
be
taken
into
account,
I
think
it
desirable
to
keep
within
the
boundaries
which
the
facts
in
this
case
have
set
for
us.
As
the
matter
relates
to
evidence
sought
by
either
the
Crown
or
the
accused
in
a
criminal
prosecution,
it
is
to
be
distinguished
formally
from
a
similar
step
in
civil
proceedings.
As
Mr.
Varcoe
seemed
to
put
it,
any.
document
coming
into
the
hands
of
persons
engaged
in
the
work
of
any
branch
of
the
Executive,
is
ipso
facto,
on
the
ground
of
public
policy,
exempt
from
production
on
the
objection
of
the
departmental
minister
and
for
that
proposition
he
cited
many
authorities
concluding
with
that
of
Duncan
v.
Cammell,
Laird
&
Company,
[1942]
A.C.
624.
When
these
authorities
are
closely
examined,
however,
it
will
be
found
that
they
cannot
be
taken
to
proceed
on
any
principle
so
broadly
stated,
and
it
becomes
necessary,
then,
to
enquire
into
the
nature
of
testimonial
privilege
against
disclosure
and
the
grounds
on
which
it
is
made
effective
in
legal
proceedings.
.
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
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,
670,
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.
This
is
perhaps
best
illustrated
by
the
privilege
relating
to
communications
between
husband
and
wife
or
between
solicitor
and
client.
The
public
interest
in
the
latter
relationship
lies
in
securing
to
every
citizen
the
skill
and
ability
of
a
professional
class
to
enable
him
to
protect
his
own
interest
in
life,
liberty
and
property
within
the
law
and
before
its
tribunals.
If
that
means
were
not,
in
the
widest
sense,
made
available
to
him
he
would
be
denied
that
justice
which
it
is
a
fundamental
object
of
our
political
organization
to
secure
to
him.
The
client
may,
therefore,
in
absolute
freedom,
disclose
to
his
solicitor
the
details
of
his
business
or
personal
matters
on
which
he
seeks
legal
advice
or
action,
and
upon
that
communication
the
law
places
the
seal
of
confidence
which
only
the
client
himself
can
remove.
Of
a
similar
nature
are
communications
by
an
informer
to
public
enforcement
officers
and
those
between
officers
of
state
on
national
or
international
matters
expressing
views
or
making
proposals
on
governmental
policy
which
may
affect
the
peace
or
safety
of
the
country
and
which
the
ministers
of
the
Crown
may
even
be
sworn
not
to
disclose.
There
may
also
be
external
matters
such
as
of
defence
which
equally,
for
the
same
reason,
must
be
held
to
be
within
that
safeguard,
the
facts
of
which
may,
in
the
discretion
of
ministers
or
government,
be
disclosed
as
considered
desirable.
Is
there,
then,
a
privilege
of
that
nature
here?
If
so,
to
whom
does
it
run
and
what
is
the
public
policy
supporting
it?
It
is
claimed
that
the
circumstances
give
rise
to
such
a
privilege
in
the
Crown
and
that
the
public
interest
emanates
from
an
undertaking
on
its
part,
implied
by
the
Income
Taz
Act,
toward
all
income
taxpayers
that
the
contents
of
the
returns
of
none
of
them
will
be
revealed
beyound
the
circle
of
officials
concerned
in
administering
the
statute.
Section
121
of
that
Act
forbids
the
disclosure
of
any
information
obtained
under
it
to
any
person
‘‘not
legally
entitled
thereto’’.
For
the
purposes
of
his
argument,
however,
Mr.
Varcoe
puts
that
aside
as
being
irrelevant
to
the
proposition
urged.
I
am
unable
to
agree
with
either
of
these
contentions.
I
can
find
nothing
in
the
statute
indicating
such
an
undertaking.
The
disclosure
of
a
person’s
return
of
income
for
taxation
purposes
is
no
more
a
matter
of
confidence
or
secrecy
than
that,
say,
of
his
real
property
which
for
generations
has
been
publicly
disclosed
in
assessment
rolls.
It
is
in
the
same
category
as
any
other
fact
in
his
life
and
the
production
in
court
of
its
details
obtained
from
his
books
or
any
other
source
is
an
everyday
occurrence.
The
ban
against
departmental
disclosure
is
merely
a
concession
to
the
inbred
tendency
to
keep
one’s
private
affairs
to
one’s
self.
Now
that,
in
this
competitive
society,
is
a
natural
and
unobjectionable
tendency
but
"it
has
never
before
been
elevated
to
such
a
plane
of
paramount
concern.
The
most
confidential
and
sensitive
private
matters
are
daily
made
the
subject
of
revelation
before
judicial
tribunals
and
it
scarcely
seems
necessary
to
remark
on
the
relative
insignificance
to
any
legal
or
social
policy
of
such
a
fact
as
the
income
a
man
has
been
able
to
produce.
I
should
say,
therefore,
that
the
only
privilege
furnished
is
that
given
by
the
statute
and
that
it
is
a
privilege
for
the
benefit
of
the
individual
and
not
the
Crown.
The
prohibition
of
the
statute
is
against
disclosure
to
others
than
the
departmental
staff
charged
with
the
assessment
but
since
the
public
interest
in
the
administration
of
justice
transcends
that
of
any
individual
in
the
details
of
his
ledger
account,
the:
an
is
to
be
taken
to
be
directed
against
a
voluntary
disclosure
only
and
has
no
application
to
judicial
proceedings.
The
intervention:
of.
the:
minister,
as
would
be
that
of
the
person
himself,
is
therefore
ineffectual.
-
The
second
question
f
the
reference
suggests
a
distinction
etween
possession
of
the
Crown
and
by
departmental
officials
administering.
the
Act.
The
“Crown”
as
used
in
this
sense
is
assumed
to
Carry
with
it
some
mystical
character
which
removes
the
case
from
the
level*
on
which
taxation
takes
place.
Where
in
constitutional
or
high
governmental
functions
the
prerogative
or-evén
statutory
powét-is
exercised
in
relation
to
the
pb^ssiôn^f-^:-d6éüment
'Whéiher-
personally
by
the
Sovereign
Or
-by'
-means
SF
secretaries^'■ministers,
or
‘other
high
officers
of
state
acting
themselves
or
through
subordinate
officers,
there
are
or
may
be
undoubtedly
elements
that
give
the
possession
a
special
character.
But
here
is
a
statute
providing
for
the
assessment
and
collection
of
taxes
by
an
administrative
department
which
the
statute
itself
sets
up.
The
subject
is
placed
in
communication
with
the
officials
of
that
department
in
immediate
relation
to
a
function
that
directly
and
individually
affects
his
private
financial
affairs.
Neither
the
prerogative
nor
any
constitutional
or
political
function
is
involved.
To
suggest
that
either
in
the
case
of
protecting
or
attacking
the
private
interest
of
the
taxpayer
the
custody
of
tax
returns
rendered
to
the
department
can
be
refused
production
on
the
ground
of
the
nature
of
the
possession
is
to
attract
some
vague
magic
sensed
or
associated
with
the
prerogative
to
the
routine
of
administrative
government.
All
governmental
and
administrative
activity
may
be
said
to
be
carried
out
by
the
Executive
but
it
is
not
in
these
levels
of
administration,
which
might
extend
to
every
clerk,
say,
of
a
government
railway,
that
any
degree
or
shade
of
possession
in
the
course
of
executive
action
is,
by
a
reference
to
the
Crown,
to
be
placed
beyond
the
reach
of
the
courts.
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
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
déterminätion-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
the
reasoning
of
the
Judicial
Committee
in
Robinson
v.
South
Australia,
[1931]
A.C.
704.
I
would
therefore
answer
the
questions
as
follows:
Question
I(a)
and
(b)
:
Yes,
unless
special
facts
or
circumstances
appearing
on
the
minister’s
affidavit
make
it
clear
to
the
court
that
there
might
be
prejudice
to
the
public
interest
in
the
disclosure,
but
only
to
the
extent
of
the
document
or
documents
within
the
special
facts
or
circumstances.
Question
II
:
The
documents
are
in
the
custody
of
officials
to
the
extent
that
the
court
may
order
them
produced
in
court
pursuant
to
subpoena.
Question
III:
The
Minister
has
no
right
to
object
to
the
production
of
the
documents.
Subject
to
the
variation
indicated,
the
appeal
must
be
dismissed.
KELLOCK,
J.
(Kerwin,
Taschereau
and
Fauteux,
JJ.,
concur)
:—In
support
of
the
appeal
Mr.
Varcoe
relied
heavily
upon
the
decision
of
the
House
of
Lords
in
Duncan
v.
Cammel,
Laird,
[1942]
1
All
E.R.
587.
The
present
questions,
however,
relate
exclusively
to
criminal
proceedings,
and
it
is
stated
by
Viscount
Simon,
L.C.,
in
the
above
case
at
p.
591
that
“The
judgment
of
the
House
in
the
present
case
is
limited
to
civil
actions
and
the
practice,
as
applied
in
criminal
trials
where
an
individual’s
life
or
liberty
may
be
at
stake,
is
not
necessarily
the
same.”
Even
in
criminal
proceedings
it
has
been
held,
for
example,
that
the
usual
rule
that
the
channel
of
information
giving
rise
to
a
prosecution
is
not
to
be
disclosed
upon
the
ground
of
publie
interest,
is
not
an
absolute
rule.
In
Hardy’s
case
(1794),
24
State
Trials,
199,
Eyre,
C.J.,
at
p.
808,
said:
“.
.
.
there
is
a
rule
which
has
universally
obtained
on
account
of
its
importance
to
the
public
for
the
detection
of
crimes,
that
those
persons
who
are
the
channel
by
means
of
which
that
detection
is
made,
should
not
be
unnecessarily
disclosed
:
if
it
can
be
made
to
appear
that
really
and
truly
it
is
necessary
to
the
investigation
of
the
truth
of
the
case
that
the
name
of
the
person
should
be
disclosed,
I
should
be
very
unwilling
to
stop
it.”
In
referring
to
the
above
statement
and
to
others
of
the
same
character,
Viscount
Simon
said
at
the
above
page:
‘‘Indeed,
Eyre,
C.J.,
in
the
passage
referred
to
appears
only
to
be
restricting
needless
cross-examination.”
There
is,
accordingly,
not
only
a
public
interest
in
maintaining
the
secrecy
of
documents
where
the
public
interest
would
otherwise
be
damnified,
as,
for
example,
where
disclosure
would
be
injurious
to
national
defence
or
to
good
diplomatic
relations,
or
where
the
practice
of
keeping
a
class
of
documents
is
necessary
for
the
proper
functioning
of
the
public
service,
but
there
is
also
a
public
interest
which
says
that
‘‘an
innocent
man
is
not
to
be
condemned
when
his
innocence
can
be
proved’’;
per
Lord
Ksher,
M.R.,
in
Marks
v.
Beyfus,
25
Q.B.D.
494
at
498.
It
cannot
be
said,
however,
that
either
the
one
or
the
other
must
invariably
be
dominant.
In
the
Beyfus
case,
it
was
held
that
the
latter
policy
should
govern,
but
in
the
world
in
which
we
live
today,
circumstances
are
conceivable
in
which
the
disclosure
for
the
purpose
of
proving
the
innocence
of
one
man
might
bring
down
destruction
upon
many
others.
Such
a
clash
of
conflicting
public
interests
can
be
resolved
only
by
the
court.
In
considering
the
applicability
of
the
rule
as
to
secrecy
of
documents
in
the
public
interest,
it
is
to
be
remembered
that
where
it
does
apply,
not
even
a
copy
of
a
document,
no
matter
from
what
source
it
may
be
forthcoming,
nor
any
oral
evidence
as
to
its
contents
are
admissible.
In
Chatterton
v.
Secretary
of
State
for
India,
[1895]
2
Q.B.
189,
A.
L.
Smith,
L.J.,
laid
down
the
rule
at
p.
195
as
follows
:
‘“The
cases
have
gone
the
length
of
holding
that,
even
if
no
objection
were
taken
to
the
production
of
such
a
document
by
the
person
in
whose
custody
it
was,
it
would
be
the
duty
of
the
judge
at
the
trial
to
intervene,
and
to
refuse
to
allow
it
to
be
produced:
and
it
has
further
been
held
that,
if
an
attempt
were
made
to
get
round
that
difficulty
by
giving
secondary
evidence
of
its
contents,
the
judge
ought
also
to
prevent
that
from
being
done.”
Viscount
Simon,
L.C.,
referred
to
the
above
with
approval
in
the
Cammell,
Laird
case
at
p.
595,
where
he
said
:
‘‘
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
verbal
evidence
which,
if
given,
would
jeopardize
the
interests
of
the
community.”
In
1888,
in
Hennessy
v.
Wright,
21
Q.B.D.
509
at
521,
Wills,
J.,
had
said
:
‘‘I
think
the
above
cases
abundantly
show
that
no
sound
distinction
can
be
drawn
between
the
duty
of
the
judge
when
objection
is
taken
by
the
responsible
officer
of
the
Crown,
or
by
the
party,
or
when,
no
objection
being
taken
by
anyone,
it
becomes
apparent
to
him
that
a
rule
of
public
policy
prevents
the
disclosure
of
the
documents
or
information
sought.’’
It
follows
that
if,
in
any
case,
the
nature
of
the
information
sought
to
be
placed
before
the
court
is
not
of
such
a
nature
that
by
no
person
or
by
no
means
may
evidence
be
given
of
it,
there
is
no
public
interest
attaching
to
its
non-disclosure.
Moreover,
aS
observed
by
Lord
Blanesburgh
in
Robinson’s
ease,
[1931]
A.C.
704
at
718,
66
.
the
privilege,
the
reason
for
it
being
what
it
is,
can
hardly
be
asserted
in
relation
to
documents
the
contents
of
which
have
already
been
published.”
The
documents
which
are
involved
in
the
questions
presently
before
the
court
are
all
documents
which
have
been
‘‘filed’’
pursuant
to
the
provisions
of
one
or
other
of
the
designated
statutes,
that
is,
they
are
all
documents
emanating
from
a
taxpayer
or
a
person
required
by
the
legislation
to
furnish
information.
As
pointed
out
by
Viscount
Simon
in
the
Cammell,
Laird
case
at
p.
592,
the
question
as
to
what
documents
are
non-producible
on
the
ground
of
public
interest,
may
arise
with
respect
to
the
contents
of
a
particular
document
or
with
respect
to
a
class
of
document.
The
questions
presently
before
the
court
relate
exclusively
to
a
class
of
document
and
not
to
the
contents
of
any
particular
document
within
that
class.
In
considering
the
proper
answers
to
be
given
to
the
questions
asked,
it
is
pertinent
to
consider
whether,
in
the
legislation
itself,
Parliament
has
indicated
whether
or
not
any
secrecy,
from
the
standpoint
of
the
state,
is
to
attach
to
documents
of
this
class.
The
situation
will
sufficiently
appear
if
I
refer
only
to
the
provisions
of
The
1948
Income
Tax
Act,
11-12
Geo.
VI,
C.
52.
By
Section
82(2),
which
deals
with
appeals
by
a
taxpayer
to
the
Income
Tax
Appeal
Board
from
the
decision
of
the
Minister,
it
is
not
the
Crown
by
the
appellant
who
is
given
the
right
to
require
a
hearing
in
camera.
The
present
form
of
the
section
emphasizes
the
intention
of
Parliament
in
that
the
right
formerly
given
by
the
previous
Section
68
to
the
Crown
to
require
the
hearing
to
be
in
camera,
no
longer
exists.
It
would
seem
difficult
to
contend
in
the
light
of
this
legislation
that
any
state
secrecy
was
intended
by
Parliament
to
surround
the
class
of
document
here
in
question.
Section
98,
which
deals
with
appeals
to
the
Exchequer
Court,
is
similar
to
Section
82(2).
These
provisions,
in
my
view,
indicate
that
any
secrecy
which
is
in
contemplation
of
the
statute
is
for
the
benefit
of
the
taxpayer
only.
Nor
do
the
sections
just
referred
to
stand
alone.
By
Section
120(1)
it
is
made
an
offence
to
make,
participate
in
or
assent
to
the
making
of
a
false
or
deceptive
statement
in
a
return.
Proceedings
to
enforce
the
penalty
provided
for
such
an
offence
necessarily
involve
the
production
of
the
offending
return
in
evidence.
In
fact,
by
Section
124(8)
provision
is
made
for
the
admission
of
a
sworn
copy
of
any
document
made
by
or
on
behalf
of
a
taxpayer
as
prima
facie
evidence
of
the
nature
and
contents
of
the
document.
In
Snell
v.
Haywood
(No.
2),
[1947]
3
D.L.R.
086;
[1947]
C.T.C.
406,
it
was
held
by
the
Appellate
Division
of
the
Supreme
Court
of
Alberta
that
proceedings
of
this
character
by
way
of
summary
conviction
must
be
in
publie.
I
respectfully
agree
with
the
decision
in
Ship
v.
The
King
(1949),
95
C.C.C.
143,
where
it
was
held
by
the
Court
of
King’s
Bench,
Appeal
Side,
that
Section
121,
which
deals
with
the
subject-matter
of
secrecy
as
to
‘‘any
information
obtained
under
this
Act’’,
or
“‘any
written.statement
furnished
under
this
Act’’,
and
which
prohibits
communication
by
employees
of
Her
Majesty
to
anyone
except
a
person
“legally
entitled
thereto’’,
applies
to
the
administrative
field
only.
The
statute
itself
has
nothing
to
say
as
to
the
identity
of
the
persons
so
entitled
but
leaves
that
to
be
determined
by
the
general
law.
In
my
opinion,
a
court
of
competent
jurisdiction
issuing
its
subpoena
would,
in
any
event,
be
within
the
language
of
the
exception
and
entitled
to
enforce
the
production
of
any
returns
or
statements
filed.
It
may
be
observed
that
in
Ship’s
case
the
Crown
did
not,
on
that
occasion,
even
object
to
the
production
of
such
documents.
The
decision
reached
by
a
divided
court
in
British
Columbia
in
the
case
of
Weber
v.
Pawlik
(1952),
5
W.W.R.
49;
[1952]
C.T.C.
32,
is
one
with
which,
with
respect,
I
cannot
agree.
That
was
a
partnership
action
in
which
the
plaintiff
alleged
that
the
defendant,
by
concealing
and
mis-stating
to
him
the
firm’s
earnings,
had
deprived
him
of
his
proper
share
of
the
profits
and
eventually
induced
him
to
sell
his
interest
at
an
under-value.
The
plaintiff
had
left
the
management
of
the
partnership
business
to
the
defendant,
the
latter
making
the
income
tax
returns
on
its
behalf,
while
furnishing
the
plaintiff
with
statements
as
to
profits.
After
the
plaintiff
had
sold
out
his
interest
to
the
defendant,
he
was
assessed
for
taxes
in
respect
of
periods
during
which
the
partnership
was
in
existence,
on
profits
subtantially
in
excess
of
those
which
had
been
reported
to
him
by
the
defendant.
On
application
to
the
income
tax
authorities,
the
plaintiff
was
given
full
particulars
of
the
returns
the
defendant
had
filed,
which
were,
of
course,
fully
as
much
those
of
the
plaintiff
as
of
the
dependant,
but
at
the
trial,
on
objection
of
the
Minister,
the
returns
were
excluded.
The
objection
appears
to
have
involved
the
contention
that
the
returns
were
not
producible
in
the
public
interest
because
‘‘confidential’’.
This
decision,
with
respect,
involves
a
misconception
not
only
of
the
effect
of
the
statute
itself
but
also
of
the
scope
of
the
rule
purported
to
be
invoked,
as,
if
applicable,
no
evidence
of
the
contents
of
the
returns
could
have
been
given
either
by
production
of
a
copy
or
by
oral
evidence.
This
could
scarcely
have
been
contended
in
such
a
case
as
the
defendant
would
be
obligated
to
make
full
disclosure
of
the
income
of
the
partnership.
Mr.
Varcoe
refused
to
take
any
such
position
in
the
case
at
bar
but
based
the
appeal
upon
the
ground
of
an
undertaking
on
the
part
of
the
Crown
that
tax
returns
will
be
kept
confidential
by
the
department.
Neither
in
criminal
nor
in
civil
proceedings
are
documents
which
are
merely
‘‘official’’
or
‘‘confidential’’
within
the
rule
as
to
non-dosclosure
on
the
ground
of
public
interest.
In
Asiatic
Petroleum
Company
v.
Anglo-Persian
OU
Company
Limited,
[1916]
1
K.B.
822,
Swinfen
Eady,
L.J.
(with
the
subsequent
approval
of
the
Privy
Council
in
Robinson
v.
South
Australia,
[1931]
A.C.
704
at
714),
said
at
p.
830
that
the
foundation
of
the
rule
“is
that
the
information
cannot
be
disclosed
without
injury
to
the
public
interests,
and
not
that
the
documents
are
confidential
or
official,
which
alone
is
no
reason
for
their
nonproduction:
Smith
v.
East
India
Co.,
1
Ph.
60;
Hennessy
v.
Wright,
21
Q.B.D.
509.”’
In
my
view
of
the
statute,
there
is
no
provision
as
to
the
confidential
character
of
returns
filed
except
that
provided
for
by
Sections
82(2),
93
and
121,
with
which
I
have
already
dealt.
It
only
remains,
in
this
aspect
of
the
matter,
to
refer
to
the
decision
in
Re
Hargreaves,
[1900]
1
Ch.
347.
That
case
arose
under
Section
115
of
the
Imperial
Companies
Act,
1862,
which
gives
the
court
a
discretion
as
to
making
an
order
for
production
of
documents.
The
liquidator
of
the
company
there
in
question,
in
order
to
obtain
evidence
in
support
of
a
misfeasance
summons
against
the
directors,
applied
for
an
order
that
the
surveyor
of
taxes
should
attend
for
examination
and
produce
certain
balance
sheets
of
the
company
which
had
been
delivered
to
him
for
the
purpose
of
assessment
for
income
tax.
The
surveyor,
who
objected
to
produce
on
the
ground
that
it
would
be
contrary
to
the
oath
he
had
taken,
was
supported
in
his
objection
to
production
of
the
documents
by
the
Board
of
Inland
Revenue
on
the
ground
that
to
do
so
would
be
‘‘prejudicial
and
injurious
to
the
public
interests
and
service’’.
Wright,
J.,
the
judge
of
first
instance,
referred
to
the
discretionary
nature
of
the
jurisdiction
conferred
by
Section
115
and
said
that
if
he
had
sufficient
evidence
that
in
the
opinion
of
the
Board
of
Inland
Revenue
the
public
service
would
suffer
by
the
production
of
the
documents,
very
strong
ground
ought
to
be
shown
before
he
would
be
justified
in
going
behind
the
certificate
of
the
Board
and
he
refused
to
do
so.
His
order
was
upheld
on
appeal,
the
court
refusing
to
reverse
the
exercise
of
discretion
below.
There
is
no
such
discretionary
statutory
provision
applicable
to
the
case
at
bar,
but
apart
from
that
consideration,
there
are
two
matters
to
be
noted.
The
first
is
the
observation
of
Romer,
L.J.,
at
p.
303:
“The
question
now
before
us
is
not
necessarily
the
same
as
that
which
may
possibly
arise
upon
the
hearing
of
the
misfeasance
summons
if
the
judge
has
then
to
consider
the
question
of
a
subpoena
for
the
production
of
these
documents.”’
The
other
is
that
the
provisions
of
the
statute
there
in
question,
namely,
the
Income
Tax
Act
of
1842,
5-6
Victoria,
c.
35,
are
not
the
same
as
those
of
the
Canadian
statute.
Sections
38
and
189,
unlike
Section
121
of
the
Canadian
statute,
contain
no
exception
with
respect
to
communication.
Apart
from
the
statutory
provisions
to
which
I
have
referred,
our
attention
was
not
called
to
any
others,
federal
or
provincial,
having
any
relevancy.
For
these
reasons,
therefore,
I
would
answer
Question
1(a)
and
(b)
in
the
affirmative,
unless
special
facts
or
circumstances
appearing
on
the
Minister’s
affidavit
make
it
clear
that
there
might
be
prejudice
to
the
public
interest
in
the
disclosure,
but
only
to
the
extent
of
the
document
or
documents
within
the
special
facts
or
circumstances.
As
to
Question
2,
it
was
held
by
Wills,
J.,
in
H
CENNESSY
V.
Wright,
ubi
cit,
at
p.
523,
that
whether
documents
with
respect
to
which
the
privilege
on
the
ground
of
public
policy
exists
are
the
property
of
the
Crown
rather
than
the
property
of
the
witness
is
immaterial.
The
question
remains
the
same.
This
is
indicated
also
by
Viscount
Simon
in
the
Cammell,
Laird
case
at
p.
091,
where
he
said
:
“The
question
which
we
have
to
decide
can
only
arise
as
a
matter
of
law
in
England
in
cases
where
a
subpoena
is
issued
to
a
minister
or
department
to
produce
a
document
(usually,
but
not
necessarily,
in
a
suit
where
the
Crown
is
not
a
party),
or
where
it
intervenes
in
a
suit
between
private
individuals
(as
is
the
present
case)
to
secure,
on
the
ground
of
publie
interest,
that
documents
in
the
hands
of
one
of
the
litigants
should
not
be
produced.
A
similar
situation
might
conceivably
arise
in
litigation
between
the
Crown
and
a
subject
where
it
was
considered
necessary
to
prevent
the
subject
from
producing
a
document
in
his
possession
on
the
ground
that
this
would
be
injurious
to
public
interests.
”
I
would
therefore
answer
that
the
documents
are
in
the
possession
of
the
official
to
the
extent
that
the
court
may
order
them
produced
in
court
pursuant
to
subpoena.
As
to
Question
3,
the
Minister
has
no
right
to
object
to
the
production
of
the
documents.
Subject
to
the
variations
involved
in
these
answers,
the
appeal
should
be
dismissed.
ESTEY,
J.:—The
questions
are
restricted
to
a
trial
of
an
indictable
offence,
where
a
subpoena
duces
tecum
has
been
served
on
the
appropriate
income
tax
official
to
produce
before
the
court
returns,
reports,
papers
and
documents
filed
pursuant
to
the
provisions
of
the
Income
Tax
Act,
the
Income
War
Tax
Act
or
the
Excess
Profits
Tax
Act,
1940,
and
to
give
evidence
relating
thereto
as
to
which
the
Minister
of
National
Revenue
has
stated
on
oath
that
in
his
opinion
such
evidence
and
the
production
of
such
returns,
reports,
papers
and
documents
would
be
prejudicial
to
the
public
interest
(a)
when
such
subpoena
is
served
at
the
instance
or
on
behalf
of
the
Attorney-General
of
a
province
and
(b)
when
such
subpoena
is
served
at
the
instance
or
on
behalf
of
the
accused.
That
the
considerations
of
public
safety
and
security
require
that
the
utmost
secrecy
be
maintained
with
respect
to
certain
documents
and
information
in
relation
thereto
in
the
possession
of
the
Crown
has
long
been
recognized.
The
courts,
in
the
administration
of
justice,
have
accepted,
as
part
of
their
duty,
the
maintenance
of
that
secrecy
and
have
not
required
either
be
adduced
in
evidence.
The
basis
of
the
rule
is
stated
by
Lord
Blanesburgh
in
Robinson
v.
South
Australia,
[19311
A.C.
704
at
714:
“As
the
protection
is
claimed
on
the
broad
principle
of
state
policy
and
public
convenience,
the
papers
protected,
as
might
have
been
expected,
have
usually
been
public
official
documents
of
a
political
or
administrative
character.
Yet
the
rule
is
not
limited
to
these
documents.
Its
foundation
is
that
the
information
cannot
be
disclosed
without
injury
to
the
public
interests
and
not
that
the
documents
are
confidential
or
official;
which
alone
is
no
reason
for
their
non-production.
’
’
and
by
Viscount
Simon
in
Duncan
v.
Cammell,
Laird
&
Co.,
[1942]
A.C.
624
at
636:
“The
principle
to
be
applied
in
every
case
is
that
documents
otherwise
relevant
and
liable
to
production
must
not
be
produced
if
the
public
interest
requires
that
they
should
be
withheld.”
We
are
here
concerned
only
with
documents
and
information
associated
therewith
filed
pursuant
to
the
requirements
of
the
above-named
statutes.
Issues
are
constantly
being
tried
before
our
courts
relative
to
the
liability
of
the
taxpayer
as
well
as
prosecutions
for
the
failure
to
perform
duties
imposed
by
these
statutes.
Accordingly,
such
documents
and
information
in
relation
thereto
have
been
repeatedly
before
the
courts
without
any
suggestion
that
the
public
safety
or
security
has
been
at
all
imperilled;
nor
does
there
appear
to
be
any
reason
in
principle
why
these
documents
and
information
in
relation
thereto
should,
under
ordinary
circumstances,
not
be
disclosed.
It
must
follow
that
as
a
class
these
documents,
in
the
ordinary
course,
do
not
involve
questions
of
safety
or
security
and
as
such
their
production
would
not
be
prevented
upon
the
basis
of
public
interest.
There
may,
however,
with
respect
to
one
or
more
of
these
documents
and
information
in
relation
thereto,
be
special
circumstances
which
the
minister
may
consider
such
as
to
require
his
taking
the
objection
in
respect
of
these
particular
documents.
It
is,
therefore,
pertinent
to
consider,
in
that
event,
the
procedure
to
be
followed.
We
were
referred
to
a
great
many
authorities
under
which
the
rule
has
long
been
recognized
but
in
which
there
has
been
much
difference
of
judicial
opinion
as
to
the
manner
in
which
the
objection
to
produce
such
documents
ought
to
be
made
and
the
respective
functions
of
the
minister
and
the
judge.
More
recent
authorities
appear
to
have
established
that
the
objection
must
be
made
by
the
minister
presiding
over
the
department,
commission,
board
or
other
body
to
whose
custody
the
documents,
the
production
of
which
is
requested,
are
held.
Before
making
the
objection
the
minister
should
acquaint
himself
with
the
facts
and,
as
a
responsible
minister
of
the
Crown,
decide
whether
the
production
of
these
documents,
or
evidence
in
relation
thereto,
would
or
would
not
be
detrimental
to
the
public
interest.
If
he
comes
to
the
conclusion
that
their
disclosure
would
be
detrimental,
it
would
appear
that
the
more
convenient
procedure
would
be
that
he
embody
in
an
affidavit
sufficient
of
the
facts
to
indicate
the
nature
of
his
objection
and
that
he,
as
a
responsible
minister
of
the
Crown,
has
concluded
that
their
production,
or
information
in
relation
thereto,
in
a
court
of
law
would
be
detrimental
to
the
public
interest.
The
presiding
judge,
who,
upon
the
affidavit,
is
satisfied
that
the
production
of
these
documents
and
information
in
relation
thereto
might
be
detrimental
to
the
public
interest,
would
give
effect
to
the
minister’s
objection.
The
different
opinions
expressed
by
the
authorities
as
to
the
right
of
a
presiding
judge
to
examine
the
documents
appear
to
have
been
resolved
by
the
observations
of
Viscount
Simon
in
the
Cammell,
Laird
case,
supra.
There
the
House
of
Lords
expressly
disapproved
of
the
practice
followed
in
Robinson
v.
South
Australia,
supra,
where
the
Judicial
Committee
“remitted
the
case
to
the
Supreme
Court
with
the
direction
that
it
was
one
proper
for
the
exercise
of
the
court’s
power
of
inspecting
documents
to
determine
whether
their
production
would
be
prejudicial
to
the
public
welfare’’.
This
view
but
emphasizes
the
fact
that
the
documents
and
information
in
relation
thereto
to
which
the
rule
applies
are
such
that
neither
should,
by
order
of
a
court,
be
required
to
pass
out
of
the
possession
of
those
officials
of
Her
Majesty
who
are
charged
with
their
custody.
The
Cammell,
Laird
case
was
a
civil
case,
but
it
would
appear
that
the
foregoing
quotations
and
observations
taken
from
or
founded
upon
this
case
are
relevant
to
the
trial
of
an
indictable
offence.
Sections
81
of
the
Income
War
Tax
Act
and
121
of
The
1948
Income
Tax
Act,
would
appear
to
have
been
placed
in
the
statutes
to
assure
that
those
charged
with
the
administration
of
the
foregoing
statutes
would
treat
as
confidential
the
information
contained
in
or
filed
in
relation
to
these
documents.
The
reason
and
basis
therefor
is
quite
different
and
has
no
bearing
on
or
relation
to
the
above-discussed
rule
founded
upon
the
necessity
of
public
safety
and
security.
In
my
opinion
the
questions
submitted
should
be
answered
as
phrased
by
the
majority
of
the
Court
and
set
forth
in
the
reasons
of
my
brothers
Rand
and
Kellock.
Locke,
J.:—I
respectfully
agree
with
the
opinion
of
the
learned
Chief
Justice
of
British
Columbia
and
with
the
answers
made
by
him
to
the
questions
referred
to
the
Court
of
Appeal
and
would
accordingly
dismiss
this
appeal.
CARTWRIGHT,
J.:—Question
No.
1
may,
at
a
first
reading,
appear
to
be
ambiguous;
but
when
it
is
considered
in
the
light
of
the
arguments
addressed
to
us
by
both
counsel
it
becomes
clear
that
it
is
directed
to
a
case
in
which
the
objection
to
the
production
of
the
documents
called
for
in
the
subpoena
duces
tecum
is
based
not
upon
any
apprehended
danger
to
the
public
interest
from
disclosure
of
the
matter
contained
in
the
particular
returns
and
other
documents
of
which
production
is
sought
but
upon
the
view
entertained
by
the
Minister
that
as
a
matter
of
public
or
departmental
policy
he
ought
to
object
to
the
production
from
the
custody
of
the
department
of
any
income
tax
returns
or
correspondence
relating
thereto.
The
reason
assigned
in
support
of
this
view
is
that,
while
the
returns
are
made
under
statutory
compulsion,
the
taxpayers
rely
in
making
them
upon
an
implied
undertaking
that
the
department
will
treat
them
as
confidential
communications
and
that
it
would
be
prejudicial
to
the
public
interest
that
this
implied
undertaking
should
be
dishonoured.
In
my
view
there
is
nothing
in
the
Acts
referred
to
in
the
question
which
affirms
the
existence
of
any
representation
or
undertaking
on
the
part
of
the
department
that
its
officials
will
not
produce
the
returns
if
called
upon
to
do
so
by
regular
process
issued
from
a
court
in
which
the
trial
of
an
indictable
offence
is
pending.
Sections
81
and
121
of
the
Income
War
Tax
Act
do
not
assist
the
appellant
on
this
point.
I
agree
with
the
view
expressed
by
Barclay,
J.,
in
Ship
v.
The
King
(1949),
95
C.C.C.
143
at
page
155
that
the
judicial
officer
presiding
at
the
trial
of
a
person
charged
with
an
indictable
offence
is
a
person
legally
entitled
to
the
information
referred
to
in
those
sections
if
the
production
of
such
information
is
duly
called
for
by
subpoena
and
is
relevant
to
the
pending
charge.
For
the
purposes
of
the
question
before
us,
such
relevance
is
assumed.
It
is
said
for
the
appellant,
however,
that
once
the
Minister
has
stated
on
oath
that
in
his
opinion
the
production
of
such
returns
would
be
prejudicial
to
the
public
interest
while
it
is
still
the
function
of
the
court
out
of
which
the
subpoena
issued
to
decide
whether
or
not
production
shall
be
ordered
that
court
must
decide
the
question
by
accepting
the
objection
of
the
Minister
as
conclusive
and
giving
effect
to
it.
It
is
argued
that
this
conclusion
flows
irresistibly
from
the
judgment
of
the
House
of
Lords
in
Duncan
v.
Cammell,
Laird
and
Company,
[1942]
A.C.
624.
In
approaching
this
argument
it
is
necessary
to
bear
in
mind
the
often
quoted
words
of
Lord
Halsbury
in
Quinn
v.
Leathem,
[1901]
A.C.
495
at
506:
.
Now,
before
discussing
the
case
of
Allen
v.
Flood
and
what
was
decided
therein,
there
are
two
observations
of
a
general
character
which
I
wish
to
make,
and
one
is
to
repeat
what
I
have
very
often
said
before,
that
every
judgment
must
be
read
as
applicable
to
the
particular
facts
proved,
or
assumed
to
be
proved,
since
the
generality
of
the
expressions
which
may
be
found
there
are
not
intended
to
be
expositions
of
the
whole
law,
but
governed
and
qualified
by
the
particular
facts
of
the
case
in
which
such
expressions
are
to
be
found.
The
other
is
that
a
case
is
only
an
authority
for
what
it
actually
decides.
I
entirely
deny
that
it
can
be
quoted
for
a
proposition
that
may
seem
to
follow
logically
from
it.
Such
a
mode
of
reasoning
assumes
that
the
law
is
necessarily
a
logical
code,
whereas
every
lawyer
must
acknowledge
that
the
law
is
not
always
logical
at
all.’’
It
is
at
once
apparent
that
the
facts
with
which
the
Law
Lords
were
dealing
in
Duncan
v.
Cammell,
Laird
and
Company
were
altogether
different
from
the
assumed
facts
upon
which
the
questions
before
us
are
based.
Moreover,
as
is
pointed
out
by
my
brother
Kellock,
Viscount
Simon,
L.C.,
was
careful
to
state
(at
page
633)
that
the
judgment
of
the
House
was
limited
to
civil
actions.
In
the
case
at
bar,
in
the
supposed
state
of
facts,
the
Minister
has
not
only
asserted
his
objection
but
has
fully
informed
the
Court
as
to
the
grounds
upon
which
it
is
founded
and
these
appear
to
me
to
be
grounds
of
the
sort
which
Viscount
Simon
indicated
(at
page
642)
‘‘would
not
afford
to
the
Minister
adequate
justification
for
objecting
to
production’’.
Perhaps
unnecessarily,
I
wish
to
emphasize
that
any
opinion
which
I
have
expressed
in
the
course
of
these
reasons
is
strictly
limited
to
the
supposed
state
of
facts
upon
which
the
first
question,
as
I
have
interpreted
it
above,
is
based.
Particularly,
I
do
not
think
we
are
called
upon
to
express
any
opinion
as
to
what
would
have
been
the
result
if
the
objection
of
the
Minister
had
been
based
on
any
other
grounds
than
those
indicated
above
or
as
to
whether,
as
the
answer
to
Question
1
given
by
the
majority
of
the
Court
of
Appeal
in
British
Columbia
might
be
thought
to
suggest,
there
may
be
circumstances
in
which
the
judge
presiding
at
the
trial
of
a
person
charged
with
an
indictable
offence
may
privately
examine
a
document
sought
to
be
introduced
in
evidence.
I
would
answer
Question
1(a)
and
(b)
as
follows:
Yes.
This
answer
is
however
limited,
as
I
have
interpreted
the
question
to
be
limited,
to
a
case
in
which
the
objection
of
the
Minister
is
to
the
production
of
any
documents
belonging
to
the
class
consisting
of
returns,
reports,
papers
and
documents
filed
pursuant
to
the
provisions
of
the
Income
Tax
Act,
the
Income
War
Tax
Act
or
the
Excess
Profits
Tax
Act,
1940,
on
the
ground
th
:
they
belong
to
that
class.
I
would
answer
Questions
2
and
3
as
proposed
by
my
brother
Kellock.