SLOAN,
C.J.B.C.:—In
January
of
1952,
some
twenty-seven
persons
were
tried
on
an
indictment
charging
them
with
unlawfully
conspiring
together
and
with
others
to
unlawfully
keep
common
betting
houses.
This
trial
was
conducted
before
an
Assize
Court
jury
at
the
City
of
Vancouver
(Coram—
Whittaker,
J.).
During
the
trial
Crown
counsel,
acting
on
behalf
of
the
Attorney-General
of
the
Province,
caused
a
subpoena
to
be
issued
commanding
the
Director
of
Taxation
to
appear
to
give
evidence
on
behalf
of
the
Crown
and
also
to
produce
at
the
trial
Income
Tax
Returns
for
the
years
1944
to
1950
inclusive
filed
by
the
accused
persons
then
on
trial.
When
the
Director
of
Taxation
appeared
before
Whittaker,
J.,
counsel
for
the
Minister
of
National
Revenue
objected
to
the
Director
of
Taxation
giving
evidence
on
behalf
of
the
Crown
and
producing
the
requested
Income
Tax
Returns.
The
ground
of
objection
was
that,
in
the
opinion
of
the
said
Minister,
it
would
be
prejudicial
to
the
public
interest
if
the
Director
of
Taxation
produced
the
Income
Tax
Returns
in
question
and
gave
oral
evidence
relating
to
the
said
returns
or
disclosed
information
obtained
by
him
in
the
course
of
his
employment
with
the
Department
of
National
Revenue.
Whittaker,
J.,
[103
Can.
C.C.
165]
overruled
these
objections.
Consequent
upon
this
ruling
certain
questions
were
submitted
to
this
Court
pursuant
to
the
provisions
of
the
Constitutional
Questions
Determination
Act,
R.S.B.C.
1948,
c.
66.
The
opinion
of
the
Court
was
certified
on
December
17th
last,
and
I
now
propose
to
state
my
reasons
for
the
opinion
then
expressed.
The
contest
in
this
Court
was
between
the
Minister
of
National
Revenue
and
the
Attorney-General
of
this
Province.
Counsel
for
the
accused
persons
did
not
appear
before
us.
Counsel
for
the
Minister
of
National
Revenue
took
the
same
position
as
that
argued
below.
He
contended
that
it
would
be
prejudicial
to
the
public
interest
if
Income
Tax
Returns
were
subject
to
production
in
Court
in
criminal
proceedings
at
the
request
of
the
Crown.
He
contended
that
it
was
within
the
sole
discretion
of
the
Minister
of
National
Revenue
to
decide
whether
the
production
of
such
returns
was
or
was
not
prejudicial
to
the
public
interest
and
that
once
the
Minister
had
made
this
objection
to
their
production
the
Courts
must
accept
this
as
final
and
had
no
authority
to
enquire
into
his
reasons
for
refusal
nor
to
overrule
his
decision.
When
pressed
to
state
on
what
grounds
the
production
of
Income
Tax
Returns
in
a
criminal
case
would
be
prejudicial
to
the
public
interest,
counsel
was
frank
to
concede,
although
not
basing
his
objection
on
the
ground
alone,
that
the
revenues
of
the
Crown
would
suffer
because
those
persons
engaged
in
crime
would
not
make
a
true
return
of
the
proceeds
of
their
criminal
activities,
if
in
so
doing
there
was
the
possibility
their
criminality
could
be
proved
against
them
by
the
production
of
these
returns.
It
is,
I
think,
rather
a
violent
assumption
that
criminals
make
a
true
disclosure
of
their
income
earned
from
crime,
but
counsel
for
the
Minister
stated
returns
from
known
or
suspected
criminals
disclosed
their
illegal
gains
in
whole,
or,
at
least,
in
part,
under
the
euphemistic
heading
of
‘‘other
income”,
or
some
like
description.
On
the
other
hand
counsel
for
the
Attorney-General
contended
that
as
the
Attorney-General
was
charged
with
the
administration
of
justice
it
was
his
bounden
duty
to
see
that
truth
was
not
suppressed
and
that
criminals
were
brought
to
justice.
If,
for
instance
on
the
prosecution
of
a
man
charged
with
selling
drugs
to
children
and
thus
corrupting
their
minds
and
bodies,
or
of
a
man
for
living
on
the
avails
of
prostitution,
or
of
persons
for
conspiring
to
keep
common
betting
houses
the
production
of
the
Income
Tax
Returns
of
these
accused
would
disclose
facts
tending
to
the
proof
of
their
crimes
then
it
was
essential
in
the
interest
of
public
justice
that
these
returns
should
be
produced
in
Court,
notwithstanding
the
fact
that
the
Crown
revenue
might
suffer
some
light
diminution
because
of
the
future
failure
of
these
criminals
to
share
the
proceeds
of
their
crimes
with
the
Government
of
Canada.
Counsel
for
the
Attorney-General
contended
that
it
was
the
Judge
presiding
at
a
criminal
trial
who
should
decide,
upon
private
examination
of
the
returns,
whether
or
not
they
were
relevant
and
admissible
and
if
so
whether
they
should
be
ex-
eluded
because
something
disclosed
therein
was
detrimental
to
the
public
interest.
That
function
of
the
Court
could
not
be
usurped
by
the
Minister
especially
when
Income
Tax
Returns
were
not
secret
documents
of
state,
such
as
plans
of
a
new
type
of
weapon,
but
were
merely
documents
of
a
confidential
character,
the
production
of
which
could
not
possibly
disclose
any
state
secrets
but
merely
the
income
of
the
taxpayer.
What,
he
asked,
would
be
the
situation
in
a
murder
case
where
the
production
of
Income
Tax
Returns
of
the
murdered
man
or
the
accused
would
tend
to
prove
a
motive
for
the
killing?
Is
the
Minister
of
Revenue
to
be
the
sole
and
final
judge
of
whether
this
evidence
is
admissible
in
a
criminal
trial
or
are
the
documents
in
question
subject
to
the
discretionary
jurisdiction
of
a
trial
Court
Judge
to
rule
upon
his
objection
to
their
production
?
This
Court
thus
finds
itself
confronted
with
a
direct
collision
between
two
opposing
principles
of
public
policy:
the
Minister
whose
duty
it
is
to
collect
the
revenue
of
the
Crown,
contending
for
one;
the
Attorney-General
whose
duty
it
is
to
prosecute
those
who
offend
against
the
criminal
laws
and
jeopardize
the
safety
and
good
order
of
the
state,
contending
for
the
other.
Counsel
for
the
Minister
relied,
in
great
part,
on
the
decision
of
the
House
of
Lords
in
Duncan
v.
Cammell,
Laird
&
Co.,
[1942]
A.C.
624,
followed
by
this
Court
in
a
civil
proceeding,
i.e.,
Weber
v.
Pawlik,
[1952]
C.T.C.
32.
I
do
not
consider
these
cases
of
any
assistance.
The
facts
are
entirely
different
and
as
Viscount
Simon,
L.C.,
said
in
the
House
of
Lords
ease
(at
pp.
633-4)
the
principle
to
be
applied
in
‘‘criminal
trials
where
an
individual’s
life
or
liberty
may
be
at
stake,
is
not
necessarily
the
same’’
as
that
to
be
applied
in
civil
cases.
Even
in
a
civil
case
the
Privy
Council
in
Robinson
v.
State
of
South
Australia,
[1931]
A.C.
704,
seems
to
have
reached
a
conclusion
differing
from
that
of
the
House
of
Lords.
But
apart
from
that
in
none
of
these
cases
had
two
departments
of
state
contended
one
with
the
other
in
conflict
as
here.
It
seems
to
me
that
in
circumstances
of
this
kind
some
assistance
may
be
obtained
from
the
decisions
in
Marks
v.
Beyfus
(1890),
25
Q.B.D.
494
at
p.
498,
and
Humphrey
v.
Archibald
(1893),
20
O.A.R.
267
at
270.
As
I
read
these
cases
they
establish
the
principle
that
where
public
interests
conflict
that
which
is
paramount
must
prevail.
That
being
so
it
is
my
view
that
the
due
administration
of
public
justice
is
paramount
to
the
collection
of
Crown
revenue.
The
facts
do
not
disclose
any
higher
justification
than
that
for
the
objection
taken
by
the
Minister
to
the
disclosure
of
Income
Tax
Returns.
The
contention
therefore
of
the
Attorney-General
is
of
greater
weight
and
must
prevail.
It
follows
that
the
objection
of
the
Minister
is
not
conclusive,
and
the
issue
of
admissibility
must
be
resolved
by
the
trial
Judge
in
the
broader
interests
of
the
state.
The
same
reasoning
it
seems
to
me
would
apply
should
an
accused
person
desire
the
production
of
returns
for
the
purpose
of
proving
his
innocence.
There
would
be
in
this
instance
the
lack
of
Governmental
conflict
but
it
seems
to
me
that
other
basic
principles
in
opposition
to
those
relied
upon
by
the
Minister
cannot
be
ignored.
In
my
opinion
it
is
in
the
public
interest
that
the
life
and
liberty
of
an
innocent
person
should
not
be
unjustly
imperilled.
That
interest
is
paramount
and
must
also
prevail.
To
that
end
then
it
is
my
view
the
trial
Judge
in
a
criminal
case
should
be
entitled
to
rule
on
the
objection
of
the
Minister
to
the
same
extent
and
for
the
same
purpose
when
returns
are
sought
by
an
accused
person
to
prove
his
innocence
as
when
the
Attorney-General
seeks
their
production
as
an
aid
in
the
prosecution
of
a
man
charged
with
a
crime
:
Marks
v.
Bey
fus,
supra,
and
Humphrey
v.
Archibald,
supra.
Counsel
for
the
Minister
relied
in
great
part
on
the
common
law
principles
enunciated
in
the
Cammell,
Laird
case,
supra—
a
matter
with
which
I
have
dealt.
He,
however,
also
relied
upon
Section
81
of
the
Income
War
Tax
Act,
R.S.C.
1927,
e.
97,
and
Section
121
of
the
Income
Tax
Act,
1948,
ce.
52.
Section
81(1)
of
the
Income
War
Tax
Act
provides:
‘‘No
person
employed
in
the
service
of
His
Majesty
shall
communicate
or
allow
to
be
communicated
to
any
person
not
legally
entitled
thereto,
any
information
obtained
under
the
provisions
of
this
Act,
or
allow
any
such
person
to
inspect
or
have
access
to
any
written
statement
furnished
under
the
provisions
of
this
Act.”
Subsection
(2)
provides:
‘‘Any
person
violating
any
of
the
provisions
of
this
section
shall
be
liable
on
summary
conviction
to
a
penalty
not
exceeding
two
hundred
dollars.’’
Section
121
of
the
Income
Tax
Act
states
:
‘‘Every
person
who,
while
employed
in
the
service
of
His
Majesty,
has
communicated
or
allowed
to
be
communicated
to
a
person
not
legally
entitled
thereto
any
information
obtained
under
this
Act
or
has
allowed
any
such
person
to
inspect
or
have
access
to
any
written
statement
furnished
under
this
Act
is
guilty
of
an
offence
and
liable
on
summary
conviction
to
a
fine
not
exceeding
$200.’’
Counsel
for
the
Minister
contends
that
the
Director
of
Income
Tax
is
a
‘‘person
employed
in
the
service
of
His
Majesty’’
and
in
consequence
is
bound
by
these
statutory
prohibitions
against
disclosure
of
Income
Tax
Returns.
He
submits
that
‘‘a
person
not
legally
entitled
thereto’’
must
extend
to
everyone
except
those
whose
administrative
duty
it
is
to
receive,
examine,
and
eheck
returns
in
the
office
of
the
Director
of
Income
Tax
and
of
necessity
the
Courts
in
those
instances
when
prosecutions
for
violations
of
the
taxing
statutes
are
undertaken
and
those
persons
whose
duty
it
is
to
assist
therein.
See,
e.g.,
78
Can.
Gaz.,
p.
3494.
It
seems
to
me,
with
deference,
that
the
construction
contended
for
by
counsel
for
the
Minister
of
the
phrase
‘‘person
not
legally
entitled
thereto’’
is
too
narrow.
If
Parliament
had
intended
to
so
limit
the
right
of
inspection
as
submitted
by
him,
it
would
have
said
so
in
apt
and
clear
language.
In
Ship
v.
The
King
(1949),
95
Can.
C.C.
143,
the
Quebec
Court
of
King’s
Bench,
Appeal
Side,
had
occasion
to
consider
these
same
sections
and
held
that
Income
Tax
Returns
were
admissible
in
evidence
in
a
criminal
case
wherein
the
accused
was
charged
with
keeping
a
common
gaming-house.
Barclay,
J.,
in
delivering
the
judgment
of
the
Court,
said
at
p.
155:
‘‘The
secrecy
pertains
to
the
administrative
field
only.
It
would
be
a
curious
position
to
take
that
when
the
Crown
obtains
knowledge
through
returns
of
the
commission
of
some
crime
not
connected
with
the
Act,
it
should
be
prohibited
from
using
that
information
against
the
perpetrator
of
the
crime.
I
am
of
the
opinion
that
when
evidence
contained
in
the
tax
return
is
pertinent
as
evidence
on
any
criminal
charge,
the
Magistrate
before
whom
that
charge
is
being
tried
is
a
person
legally
entitled
to
the
information.”
The
Minister,
it
is
true,
did
not
object
to
the
production
of
the
returns
in
that
criminal
trial,
but
it
is
open
to
question
whether
the
decision
would
have
been
different
if
he
had
done
so
because
the
judgment
appears
to
be
based
upon
the
interpretation
of
the
relevant
statutes
pressed
on
us
by
counsel
for
the
Minister.
Certainly
the
Minister
of
National
Revenue
by
not
objecting
must
have
been
of
the
opinion
that
the
Magistrate
in
the
prosecution
of
that
criminal
case
was
a
person
legally
entitled
to
production
for
inspection
otherwise
he
or
his
officials
were
acting
in
contravention
of
the
statutes.
It
is
a
recognition
of
the
broader
interpretation
to
be
put
upon
Sections
81
and
121
of
the
said
Acts,
that
is
now
sought
to
be
established.
In
this
opinion
he
was
upheld
by
the
Appeal
Court
of
Quebee
notwithstanding
the
objection
of
the
person
accused
to
have
his
returns
produced
in
Court
as
evidence
against
him.
It
is
within
the
power
of
Parliament
by
the
use
of
apt
language
to
clothe
the
Minister
with
the
jurisdiction
he
now
seeks
to
exercise.
In
my
opinion
it
has
not
done
so
in
the
situation
under
consideration.
In
summation
then
I
can
find
no
support
in
the
precedents
relied
upon
by
counsel
for
the
Minister
to
uphold
his
submission
that,
in
the
circumstances
herein,
the
Minister’s
objection
must
be
considered
by
the
Courts
as
final
and
conclusive.
The
quoted
statutes
while
preserving
his
right
to
object
to
production
do
not
vest
him
with
final
authority
in
that
regard—if
anything
they
divest
him
of
it.
My
view
rests
upon
the
principle
that
where
public
interests
conflict
that
which
is
paramount—in
this
instance
the
administration
of
criminal
justice—must
prevail.
The
Courts
and
not
the
Minister
of
National
Revenue
are
the
custodians
of
that
justice.
For
these
reasons
I
answered
the
questions
submitted
as
follows
:
Answer
to
Q.
1(a)
:
“Yes,
to
enable
the
Court
to
determine
whether
the
facts
discoverable
by
the
production
of
the
documents
would
be
admissible,
relevant
or
prejudicial
or
detrimental
to
the
public
welfare
in
any
justiciable
sense.’’
Answer
to
Q.
1(b):
‘‘
Yes,
as
answered
in
Q.
1(a).”
Answer
to
Q.
2:
‘‘The
documents
described
in
question
one
are
in
the
possession
of
authorized
Crown
officials
empowered
by
Parliament
to
receive
and
retain
income
tax
returns,
and
as
such
are
producible
in
Court
for
the
purposes
stated
in
the
answer
in
question
one,
but
subject
to
the
answers
to
questions
one
and
three.’’
Answer
to
Q.
3:
‘‘No.
But
the
effect
of
the
quoted
relevant
sections
of
the
described
enactments
render
the
Minister’s
objection
to
production,
in
criminal
proceedings,
subject
to
the
discretionary
jurisdiction
and
consequent
order
of
the
Trial
Judge,
as
set
forth
in
the
answer
to
question
number
one.’’
From
my
reading
the
form
of
questions
relates
solely
to
the
production
of
Income
Tax
Returns
in
criminal
cases.
The
words
in
Q.
1
‘‘on
the
trial
of
a
person
charged
with
an
indictable
offence’’
govern
throughout.
The
argument
before
us
was
addressed
to
this
issue
and
my
reasons
hereinbefore
set
out
are
to
be
considered
in
that
context
alone.
O’HALLORAN,
J.A.
(dissenting
in
part)
:—The
undersigned
Justice
of
the
Court
of
Appeal
has
the
honour
to
submit
his
reasons
for
the
answers
to
the
question
set
forth
in
the
certified
copy
of
a
minute
of
the
Honourable
the
Executive
Council,
approved
by
His
Honour
the
Lieutenant-Governor
on
May
5,
1952.
They
are
as
follows:
Answer
to
Q.
1(a)
:
“Yes,
to
enable
the
Court
to
determine
whether
the
facts
discoverable
by
the
production
of
the
documents
would
be
admissible,
relevant
or
prejudicial
or
detrimental
to
the
public
welfare
in
any
justifiable
sense.’’
Answer
to
Q.
1(b)
:
‘‘
Yes,
as
answered
in
1(a).”
Answer
to
Q.
2:
‘‘The
documents
described
in
question
one
are
in
the
possession
of
authorized
Crown
officials
empowered
by
Parliament
to
receive
and
retain
income
tax
returns,
and
as
such
are
producible
in
Court
for
the
purposes
stated
in
the
answer
to
question
one,
but
subject
to
the
answers
to
questions
one
and
three.’’
Answer
to
Q.
3:
“Yes.”
These
questions
as
originally
framed
were
altered
(after
an
adjournment
of
the
Court)
to
the
present
form,
in
order
to
make
them
more
specific,
particularly
in
relation
to
any
problem
arising
between
civil
and
criminal
cases.
Their
origin
is
due
to
Weber
v.
Pawlik,
[1952]
2
D.L.R.
750;
[1952]
C.T.C.
32,
in
which
I
dissented
and
Reg.
v.
Snider
(1952),
103
Can.
C.C.
165;
[1952]
C.T.C.
64
(Whittaker,
J.).
Question
1,
now
is
clearly
directed
to
criminal
cases,
but
as
I
read
them,
with
deference,
Qq.
2
and
3
have
purposely
refrained
from
doing
so,
and
phrased
as
they
are
in
principle
include
civil
cases
as
well.
But
even
if
Q.
1
were
not
restricted
to
a
criminal
case,
the
true
foundation
for
its
answer
in
my
judgment
cannot
rest
on
any
distinction
between
civil
and
criminal
law.
For
it
involves
the
competence
of
a
Minister
of
the
Crown
as
political
head
of
a
Department
of
state,
to
interject
himself
without
statutory
authority
into
Court
proceedings,
and
thereby
place
himself
above
the
Courts,
to
the
extent
that
in
any
case
whatever
he
may,
on
the
ground
of
public
policy,
forbid
testimony
to
be
adduced
in
Court,
because
he,
the
Minister,
states
on
oath
he
is
of
opinion
such
evidence
is
prejudicial
to
the
public
welfare:
Duncan
v.
Cammell,
Laird
&
Co.,
[1942]
A.C.
at
p.
632.
If
such
constitutional
power
is
vested
in
a
single
Minister,
let
alone
the
Executive,
it
must
be
a
common
law
power
since
it
is
not
authorized
by
any
statute.
According
to
my
notes
of
the
argument,
counsel
for
the
Minister
of
National
Revenue
and
counsel
for
the
Attorney-General
of
the
Province
in
clearest
language
both
recognized
this
in
common,
as
the
decisive
dividing
point.
Counsel
for
the
Minister
intrenched
himself
within
the
decision
of
the
House
of
Lords
in
Duncan
v.
Cammell,
Laird
&
Co.,
[1942]
A.C.
624,
which
on
its
facts
related
to
the
design,
specifications
and
features
of
the
submarine
‘‘Thetis’’
which
sank
disastrously
on
June
1,
1939,
during
a
submergence
test
with
a
loss
of
ninety-
nine
lives.
The
argument
on
this
Reference
revolved
around
what
Viscount
Simon,
L.C.,
said
in
that
decision.
In
reaching
my
conclusions
I
see
no
fundamental
distinction
between
civil
and
criminal
cases.
Were
I
to
rest
my
judgment
upon
the
difference
between
civil
and
criminal
law
alone
it
would
be
based
on
acceptance
of
the
Minister’s
power
in
a
civil
case,
a
proposition
which
I
rejected
in
Weber
v.
Pawlik
and
which
I
must
also
reject
here.
I
agree
with
both
counsel
that
if
the
Minister’s
power
exists
at
all,
it
must
apply
equally
in
criminal
as
well
as
in
civil
cases.
The
circumstance
that
the
case
in
which
production
is
sought
is
criminal,
no
doubt
would
be
a
factor
operating
in
the
Minister’s
mind
as
to
whether
production
is
or
is
not
contrary
to
the
public
welfare;
but
that
would
still
remain
solely
for
the
Minister
himself
to
determine,
and
his
decision
could
not
be
subject
to
examination
or
question
by
the
Courts.
The
very
essence
of
the
Minister’s
power
(if
it
exists
at
all)
is
that
he
has
at
common
law
a
supreme
and
final
authoritative
decision
over
production
of
income
tax
statements
in
Court,
beyond
and
above
the
jurisdiction
of
any
Court
in
the
land.
In
short
he
and
not
the
Court
would
be
the
law
in
this
respect,
and
its
administration,
limitations,
application,
degrees,
enforcements,
etc.
etc.,
would
all
become
his
sole
responsibility,
and
his
bare
decision
would
have
to
be
accepted
by
the
Court,
as
if
it
were
an
ultimate
verity,
unchallengeable
in
any
respect.
If
it
is
submitted
a
Court
has
jurisdiction
to
hold
the
Minister’s
power
cannot
be
applied
to
a
criminal
case
because
justice
may
be
defeated,
then
the
Court
also
must
have
jurisdiction
to
restrict
the
Minister’s
power
in
a
civil
case
if
it
thinks
justice
may
be
defeated.
The
Courts
will
not
set
up
sub-classifications
of
justice
in
action,
and
weigh
them
for
the
object
of
determining
the
limitations
of
the
Minister’s
power.
Is
it
more
important,
for
example,
to
convict
a
group
of
men
for
betting
on
race
horses
(such
as
in
Reg.
v.
Snider)
than
it
is
to
enable
a
plaintiff
to
obtain
a
judgment
in
a
civil
action
against
a
defendant
for
deceit
in
the
sale
of
the
same
horses?
It
is
quite
possible
the
Minister
might
properly
think
that
betting
on
horse-racing
is
not
such
an
evil
thing,
and
that
justice
weighed
more
heavily
in
the
civil
case.
If
it
is
argued
the
Minister
has
an
inherent
power
at
common
law
in
respect
of
civil
matters
which
he
has
not
in
criminal
matters,
the
question
arises,
when,
how,
and
where
did
the
common
law
restrict
his
power
in
criminal
matters.
Is
it
to
be
said
now
for
the
first
time
that
the
distinction
lies
in
the
4
‘unruly
horse’’
of
policy
regarding
which
a
clash
has
occurred
between
Departments
of
state?
(cf.
Lord
Wright’s
‘‘Legal
Essays
and
Addresses’’,
pp.
66
et
seq.).
It
is
true
there
was
a
clash
in
Keg.
v.
Snider
between
the
Crown
official
prosecuting
criminal
offences
and
the
Crown
official
collecting
revenue,
but
it
was
not
in
reality
a
clash
in
policy,
but
rather
a
clash
of
Government
Departments;
for
the
Crown
prosecutor
said
in
effect
there
is
no
such
policy
and
that
he
was
acting
according
to
law
and
not
policy,
and
equally
the
Minister
of
National
Revenue
also
said
he
was
not
acting
on
policy
but
according
to
the
common
law
as
explained
in
the
Cammell,
Laird
ease.
With
respect
the
issue
must
be
faced
here
as
one
of
high
constitutional
law
involving
in
fundamental
principle,
criminal
as
well
as
civil
law.
There
is
a
direct
clash
without
middle
ground,
between
the
power
of
the
Courts
on
the
one
hand,
and
the
power
of
a
member
of
the
Executive
on
the
other
hand.
It
is
therefore
not
a
case
for
an
arbitrator
(as
distinct
from
a
Court)
to
invoke
expedients
to
reconcile
the
claims
of
the
two
Departments
of
state,
but
it
is
a
case
for
a
Court
as
such
to
define
and
uphold
the
constitutional
power
of
the
Court
when
and
where
it
is
invaded
by
a
member
of
the
Executive.
The
substance
of
the
submissions
of
counsel
for
the
Minister
was
that
because
the
trial
Judge
in
the
Cammell,
Laird
case
accepted
as
conclusive
the
affidavit
of
the
First
Lord
of
the
Admiralty
on
January
29,
1941,
that
it
was
‘‘injurious
to
the
public
interest’’
to
produce
in
Court
the
specifications
and
plans
of
the
submarine
‘‘Thetis’’
and
other
documents
relating
to
it,
therefore
analogously
in
principle,
a
trial
Judge
in
Canada
ought
to
accept
as
final
and
conclusive
upon
him
a
statement
by
the
Minister
of
National
Revenue
that
in
his
opinion
it
is
prejudicial
to
the
public
welfare
to
produce
in
any
Court
whatever
income
tax
statements
that
could
have
a
bearing
on
the
decision
of
the
case
before
the
Court.
Counsel
for
the
Attorney-General
argued
inter
alia
in
reply
to
the
Cammell,
Laird
submission:
(a)
that
it
was
excluded
in
Canada
by
Section
81
of
the
Income
War
Tax
Act,
and
Section
121
of
the
Income
Tax
Act
(both
later
cited)
;
and
alternatively
(b)
production
of
income
tax
statements
in
Court
in
peacetime
are
totally
unrelated
to
production
in
Court
in
wartime
of
plans,
state
secrets
and
confidential
communications
affecting
defence
of
the
country;
that
the
gulf
between
the
two
is
so
wide
that
analogy
in
principle
is
not
rationally
feasible;
(c)
that
the
Cammell,
Laird
case
ought
not
to
be
imported
into
Canada;
that
it
ought
to
be
narrowly
confined
to
its
own
facts
and
to
the
bewildering
war
conditions
in
which
badly
bombed
and
beleaguered
Britain
then
found
herself;
(d)
that
the
Cammell,
Laird
case
is
wrong
in
principle
to
the
extent
that
it
sanctioned
trial
Judge
abdicating
essential
inherent
constitutional
powers
and
functions
of
a
Court
as
a
Court.
Since
the
Cammell,
Laird
reasoning
is
the
chief
bulwark
of
the
Minister’s
proposition
then
its
true
rationale
must
be
applicable
to
criminal
as
well
as
civil
cases.
I
do
not
overlook
that
Viscount
Simon,
L.C.,
in
a
judgment
of
noticeably
wide
scope,
said
he
did
‘‘not
necessarily’’
include
a
criminal
case.
But
suppose
someone
had
been
charged
with
manslaughter
owing
to
the
sinking
of
the
submarine
‘‘Thetis’’,
and
in
order
to
prove
that
charge
(or
conversely
for
accused
to
resist
that
charge)
it
had
become
essential
to
produce
in
a
criminal
Court
in
wartime
the
construction
design
and
plans
of
the
submarine,
would
the
House
of
Lords
have
come
in
principle
to
a
different
result?
The
House
surely
could
not
have
held
then
that
the
designs
and
plans
should
be
produced
in
Court.
Communication
or
publication
of
defence
secrets
is
no
less
serious
for
the
safety
of
the
state
in
a
criminal
case
than
in
a
civil
case.
So
analyzed
the
Cammell,
Laird
decision
must
rest
ultimately
upon
the
safety
of
the
state,
and
that
underlying
principle
would
be
the
same
whether
the
case
is
civil
or
criminal,
and
that
must
be
why
the
cautionary
words
‘‘not
necessarily’’
were
inserted
in
the
phrase
([1942]
A.C.
at
pp.
633-4)
that
the
“practice
.
.
.
in
criminal
trials
.
.
.
is
not
necessarily
the
same’’.
It
left
open
the
inclusion
of
criminal
cases
if
‘‘danger
to
the
state’’
is
involved.
But
careful
reading
of
the
Cammell,
Laird
case
shows
it
does
not
deal
primarily
with
the
distinction
between
(a)
evidence
of
danger
to
the
state,
or
acts
of
state,
on
the
one
hand,
and
evidence
on
the
other
hand
short
of
that,
to
which
terms
such
as
‘‘public
interest’’,
“public
welfare”,
“public
policy”,
may
be
attached
indiscriminately
to
preserve
secrecy
about
anything
with
which
an
office
of
Government
has
anything
to
do;
and
(b)
the
constitutional
power
of
a
Court
as
such
and
a
Minister
as
such.
I
use
‘‘act
of
state’’
in
the
sense
of
Eshugbayi
Eleko
v.
Officer
Administering
the
Government
of
Nigeria,
[1931]
A.C.
662,
later
mentioned.
Instead
the
Cammell,
Laird
case
revolves
around
what
it
repeatedly
describes
as
a
“practice”
as
to
whether
a
Court
must,
because
of
some
vague
doctrine
of
public
policy,
tie
its
own
hands
by
compulsorily
accepting
the
mere
opinion
of
a
Minister
without
reasons,
that
production
in
Court
of
almost
anything
in
his
Department
is
contrary
to
the
public
welfare
or
public
interest;
and
that
a
Court
is
to
assume
that
anything
in
a
Government
Department
is
affected
by
some
secrecy
or
confidence
the
degree
of
which
is
for
the
Minister
alone
to
decide.
This
seems
to
be
the
nub
of
the
Cammell,
Laird
case
upon
which
counsel
for
the
Minister
of
National
Revenue
relied
in
his
argument
before
this
Court.
It
is
the
point
upon
which
the
House
of
Lords
clashed
directly
(twice
as
I
pointed
out
in
Weber
v.
Pawlik,
[1952]
C.T.C.
at
p.
87)
with
the
Privy
Council
in
Robinson
v.
State
of
South
Australia,
[1931]
A.C.
704,
which
had
nothing
to
do
with
an
act
of
state
or
danger
to
the
safety
of
the
state.
The
primary
point
arising
here
therefore,
is
not
whether
Government
documents
of
a
certain
kind
should
or
should
not
be
produced
as
evidence
in
Court.
Instead
the
primary
point
is,
who
is
the
one,
the
Court
or
the
Minister,
who
shall
determine
whether
they
are
producible
at
all.
To
support
the
position
of
the
Minister
by
introduction
of
decisions
that
the
Crown
need
not
give
the
names
of
informants,
in
smuggling,
high
treason
and
informer
cases
generally,
seems
with
deference,
to
be
circling
around
the
outer
perimeter;
but
even
in
that
type
of
case—
non-disclosure
of
the
informant’s
name
is
subject
to
whether
it
is
essential
to
the
investigation
of
the
truth
of
the
case.
If
one
holds,
as
I
do,
that
the
power
is
constitutionally
vested
in
the
Court,
then
the
direction
the
Court
gives
regarding
the
admissibility,
and
the
manner
the
Court
arrives
at
its
decision
in
the
exercise
of
its
judicial
faculties,
is
something
else.
To
illustrate,
if
the
Judge
accepts
the
bare
opinion
of
the
Minister
in
any
matter
whatever
as
final
and
decisive,
as
if
the
political
head
of
a
Department
of
state
has
the
power
and
the
Judge
has
not
the
power,
to
reach
that
opinion,
then
I
think
it
is
conclusive
the
Judge
is
unconstitutionally
abdicating
the
functions
of
his
great
office.
But
if
the
Judge,
satisfied
the
evidence
may
be
relevant,
questions
the
Minister
or
his
deputized
official
in
Court
and
is
convinced
judicially
by
the
reasons
then
given,
that
it
concerns
an
act
of
state
or
that
the
safety
of
the
state
is
in
reality
endangered,
then
his
duty
would
be
to
refuse
(sub-
ject
to
appeal
of
course)
production
of
the
evidence
in
Court
whether
the
case
is
civil
or
criminal.
At
that
stage
the
existence
of
the
state
becomes
paramount
to
the
rights
of
the
individual;
for
the
rights
of
the
individual
cannot
exist
if
the
state
upon
which
they
depend
is
not
itself
preserved.
On
the
other
hand,
if
the
subject-matter
falls
short
of
an
act
of
state
or
danger
to
the
safety
of
the
state,
then
in
my
judgment,
it
is
obligatory
on
the
Judge
to
allow
production
in
Court,
if
it
is
otherwise
relevant
to
and
material
to
the
decision
of
the
case
before
him
whether
civil
or
criminal.
In
this
latter
instance
the
rights
of
the
individual
become
paramount,
and
officials
of
the
state
are
under
the
law
and
not
superior
to
the
law;
they
are
responsible
to
the
mass
will
of
the
people,
to
which
all
considerations
of
confidence
and
secrecy
must
be
subordinate.
In
Esquimalt
&
Nanaimo
R.
Co.
v.
Wilson,
50
D.L.R.
371
at
p.
376;
[1920]
A.C.
358,
the
Privy
Council
said
in
an
appeal
from
this
Province
cited
and
adopted
in
Robinson
v.
South
Australia,
supra:
‘‘The
party
ought
in
this
case
to
be
relieved
against
the
King,
because
the
King
was
the
fountain
and
head
of
justice
and
equity,
and
it
was
not
to
be
presumed
that
he
would
be
defective
in
either,
and
it
would
derogate
from
the
King’s
honour
to
imagine
that
what
is
equity
against
a
common
person
should
not
be
equity
against
him.”’
Applying
this
principle
also
to
the
first
instance
of
an
act
of
state
or
danger
to
the
safety
of
the
state:
if
an
accused
is
thereby
denied
the
production
of
evidence,
materially
assisting
his
defence,
then
it
would
seem
to
be
a
case
for
a
nolle
prosequi,
and
see
Archbold’s
Criminal
Pleading,
Evidence
&
Practice,
32nd
ed.,
p.
109.
If
in
a
civil
case
a
person
is
denied,
whether
as
plaintiff
or
defendant,
production
of
evidence
which
could
tip
the
balance
of
probabilities,
then
surely
the
Crown
as
the
fountain
head
of
justice
and
equity
would
not
in
grace
deny
him
compensation
aczordingly.
But,
except
perhaps
in
some
very
rare
case,
the
production
of
income
tax
statements
in
Court
can
have
nothing
to
do
with
an
act
of
state
or
the
safety
of
the
state;
it
relates
directly
to
production
of
documents,
which
are
affected
by
an
atmosphere
of
confidentiality
attached
to
the
communications
of
one’s
affairs
to
a
public
tax
official
in
a
manner
required
by
the
statute
and
which
are
not
available
for
curious
examination
by
the
public.
Beyond
that
there
is
nothing
sacrosanct
or
secret
about
them,
except
as
the
statute
(which
requires
them)
may
specify,
and
cf.
Opinion
of
Justices
of
Supreme
Judicial
Court
of
Massachusetts
(1952),
105
N.E.
Rep.
(2d)
225
at
p.
227.
What
counsel
for
the
Minister
is
seeking
to
do
here
in
true
effect
is
to
have
this
Court
declare—firstly
that
the
statute
does
not
determine
whether
income
tax
statements
shall
be
producible
in
Court,
and
secondly
that
the
Minister
and
not
the
Court
has
the
power
to
determine
if
they
shall
be
producible.
As
I
see
it
these
are
the
real
questions
which
His
Honour
the
Lieutenant-Governor
in
Council
desires
answered
in
these
reference
questions.
In
answer
to
the
first
point
the
whole
subject-matter
of
income
tax
begins
and
ends
in
the
field
of
statute;
it
has
no
origin
at
common
law.
The
statute
does
not
restate,
add
to
or
detract
from
anything
that
existed
at
common
law.
Income
tax
with
all
its
incidents
is
entirely
a
new
creature
of
statute.
To
illustrate
the
common
law
point
of
view
:
the
Elder
Pitt
addressing
the
House
of
Commons
in
1776
(see
Mr.
Pitt
and
America’s
Birthright
by
J.
C.
Long,
1940,
p.
439),
said
that
taxation
was
no
part
of
the
governing
or
legislative
power;
the
taxes
were
a
voluntary
gift
and
grant
of
the
Commons
alone
(as
distinct
from
the
Peers
and
the
Crown);
‘‘The
gift
and
grant
(of
taxes)
is
the
Commons
alone
.
.
.
when
therefore
in
this
House
we
give
and
grant
(taxes),
we
give
and
grant
what
is
our
own
.
.
.
The
distinction
between
legislation
and
taxation
is
essentially
necessary
to
liberty.
The
Crown,
the
Peers
are
equally
legislative
powers
with
the
Commons.
If
taxation
be
a
part
of
simple
legislation,
the
Crown,
the
Peers,
have
rights
in
taxation
as
well
as
yourselves,
rights
which
they
will
claim,
which
they
will
exercise,
whenever
the
principle
can
be
supported
by
power.’’
(My
italics.)
Section
81
of
the
Income
War
Tax
Act
and
Section
121
of
the
Income
Tax
Act
read:
“81.
(1)
No
person
employed
in
the
service
of
His
Majesty
shall
communicate
or
allow
to
be
communicated
to
any
person
not
legally
entitled
thereto,
any
information
obtained
under
the
provisions
of
this
Act,
or
allow
any
such
person
to
inspect
or
have
access
to
any
written
statement
furnished
under
the
provisions
of
this
Act.
(2)
Any
person
violating
any
of
the
provisions
of
this
section
shall
be
liable
on
summary
conviction
to
a
penalty
not
exceeding
two
hundred
dollars.”
“121.
Every
person
who,
while
employed
in
the
service
of
His
Majesty,
has
communicated
or
allowed
to
be
communicated
to
a
person
not
legally
entitled
thereto
any
information
obtained
under
this
Act
or
has
allowed
any
such
person
to
inspect
or
have
access
to
any
written
statement
furnished
under
this
Act
is
guilty
of
an
offence
and
liable
on
summary
conviction
to
a
fine
not
exceeding
$200.’’
(My
italics.)
Parliament
is
there
directing
its
composite
mind
to
the
subjectmatter
of
income
tax
statements
and
has
expressed
itself
in
language
that
is
consistent
with
recognition
of
the
Court’s
authority.
Parliament
has
there
entered
the
field
of
confidence
and
communication
and
its
statutory
voice
has
become
paramount
in
terms
that
measure
the
degree
of
secrecy
or
confidence
to
be
attached
to
them—cf.
Pocock
v.
Pocock,
[1950]
O.R.
734
at
pp.
743-4
and
not
questioned
on
appeal,
[1952]
O.R.
155.
To
argue
the
phrase
‘‘legally
entitled’’
does
not
include
a
subpoena
duces
tecum
from
the
Court
and
is
limited
to
officials
within
the
Department
itself
or
within
the
Civil
Service,
is
to
limit
and
qualify
the
expression
in
a
manner
that
could
easily
have
been
so
expressed
if
intended,
and
would
give
pause
to
wonder
why
the
weight
of
Parliament
was
invoked
to
do
what
a
Departmental
ruling
could
so
easily
do.
The
very
function
of
the
superior
Courts
let
alone
their
independent
position
in
the
Canadian
constitutional
set-up,
should
make
it
obvious
that
if
the
power
of
the
Court
was
not
implicitly
included
within
4
legally
entitled
’
’
then
Parliament
would
have
found
it
essential
to
make
that
clear
beyond
doubt;
and
cf.
Lee
v.
Birrell
(1813),
3
Camp.
337,
170
E.R.
1402.
Nor
does
any
question
of
prerogative
arise.
Whatever
might
be
the
position
of
the
Queen’s
prerogative
(even
if
it
could
be
regarded
as
vested
in
a
single
head
of
the
political
Department
of
Government)
if
it
were
left
as
matter
of
common
law,
it
is
here
in
this
particular
respect,
and
in
these
particular
enactments,
made
a
matter
of
Parliamentary
legislation,
so
that
the
prerogative
is
pro
tanto
submerged
in
the
statute:
cf.
Moore
v.
A.-G.
Irish
Free
State
(1935),
104
L.J.P.C.
50
at
p.
57.
With
deference,
it
is
my
judgment
that
since
the
Court
is
‘‘legally
entitled’’
by
statute
to
production
under
the
subpoena
duces
tecum,
and
since
the
terms
of
the
statute
must
be
read
to
exclude
the
existence
of
any
Ministerial
or
Governmental
power
not
expressed
in
the
statute,
and
since
any
applicable
prerogative
is
merged
in
the
statute
and
its
exercise
restricted
by
such
statute,
grounds
for
introducing
any
principle
attributable
to
the
Cammell,
Lard
decision
cannot
exist
in
Canada.
Next,
regarding
the
second
point
(viz.,
whether
the
Minister
or
the
Court
has
the
constitutional
power
to
determine
if
income
tax
returns
are
producible
in
Court).
There
are
many
answers.
In
the
first
place
in
so
far
as
the
Cammell,
Laird
case
gives
support
to
the
Minister
vis-à-vis
the
Court,
then
I
think
it
must
be
rejected
in
this
Province
because
of
the
contrary
decision
of
the
Judicial
Committee
of
the
Privy
Council
in
Robinson
v.
South
Australia,
100
L.J.P.C.
183
(and
see
inter
alia
my
judgment
in
Weber
v.
Pawlik,
[1952]
C.T.C.
at
p.
38,
where
it
is
mentioned
that
our
M.R.
361
is
similar
in
its
relevant
aspect
to
the
South
Australian
Rule
examined
in
the
Robinson
case).
I
take
it
for
granted
that
a
Canadian
Court—certainly
since
the
Statute
of
Westminster,
1931,
1931-32
(Imp.),
e.
4—
need
not
follow
a
decision
of
the
House
of
Lords
(even
if
the
latter
does
not
clash
with
a
decision
of
the
Privy
Council)
should
it
remain
unconvinced
by
the
reasoning
of
the
House
of
Lords’
report.
The
point
of
view
excluding
the
Minister’s
power
has
been
expressed
in
Scotland
in
Henderson
v.
M’Gown,
[1916]
S.C.
821,
and
in
Queensland
in
Queensland
Pine
Co.
v.
Commonwealth
of
Australia,
[1920]
St.R.Qd
121.
See
also
Re
Geldart’s
Dairies
Ltd.,
[1950]
C.T.C.
484
at
p.
438,
and
the
criticism
of
the
Cammell,
Laird
case
by
Professor
Goodhart
in
(1942),
58
L.Q.
Rev.
436;
and
see
Wigmore
on
Evidence,
3rd
ed.,
vol.
VIII,
pp.
733-801,
and
(1942),
20
Can.
Bar
Rev.
806,
and
also
the
résumé
of
the
criticism
of
the
Cammell,
Laird
case
in
The
Solicitors’
Journal
(1943),
vol.
87
at
p.
61.
The
Cammell,
Laird
case
and
its
equivalent
Liversidge
v.
Anderson,
[1942]
A.C.
206;
85
Sol.
Jo.
439
(where
the
House
held
that
the
question
whether
the
Home
Secretary
entertained
“reasonable
cause’’
to
believe,
which
is
the
condition
precedent
to
detention
under
Reg.
18B,
was
not
a
‘‘justiciable
issue’’)
have
received
vigorous
criticism
in
England.
Since
I
feel
it
my
duty
to
examine
closely
the
reasoning
in
the
Cammell,
Lard
case,
I
consider
it
the
part
of
wisdom
to
incorporate
here
its
criticisms
by
Dr.
Cecil
A.
Wright,
K.C.,
and
Professor
A.
L.
Goodhart,
K.C.,
D.C.L.,
LL.D.,
Editor
of
the
Law
Quarterly
Review
which
I
do
myself
the
honour
to
adopt
(except
as
to
the
binding
effect
of
Cammell,
Laird
in
Canada),
as
found
in
(1942),
20
Can.
Bar
Rev.
at
pp.
8050-8
(see
also
(1942),
58
L.Q.
Rev.
436
and
(1943),
59
L.Q.
Rev.
102)
:
“At
a
time
when
we
hear
much
from
the
legal
profession
regarding
the
bureaucratic
tendencies
on
the
part
of
the
Executive,
it
is
rather
amazing
to
find
that
the
House
of
Lords’
judgment
in
Duncan
v.
Cammell,
Laird
&
Co.,
Ltd.,
[1942]
1
All
E.R.
587,
has
received
so
little
attention.
That
judgment
seems
to
amount
to
an
abdication
by
the
courts
of
their
proper
function
of
determining
what
is
admissible
or
inadmissible
evidence
in
leaving
to
the
Executive
an
unlimited
power
of
refusing
to
produce
evidence
on
its
mere
say-so
concerning
public
interest.
No
doubt
a
state
of
war
was
responsible
for
conceding
such
an
extraordinary
power
to
the
Executive,
but
the
fact
that
the
power
itself
is
not
confined
to
time
of
war
seems
certainly
to
merit
the
remarks
of
Lord
Atkin
in
the
Liversidge
Case
(1941),
58
T.L.R.
45,
when
he
charged
that
the
courts
were
becoming
more
executive-minded
than
the
Executive.
Despite
the
decision
of
the
Privy
Council
in
Robinson
v.
State
of
South
Australia,
[1931]
A.C.
704,
apparently
the
judgment
of
the
House
of
Lords
will
be
accepted
as
binding
Canadian
courts.
The
critical
remarks
of
Professor
Goodhart
in
a
recent
number
of
the
Law
Quarterly
Review
regarding
this
case
are
reproduced
here
in
full
and
we
believe
that
if
they
are
applicable
to
the
English
situation,
they
are
a
hundred
times
more
applicable
to
the
Canadian
picture
where
we
can
now
look
forward
to
both
Provincial
and
Dominion
Executives
refusing
to
produce
evidence
whenever
it
seems
to
be
inconvenient
to
the
Department
concerned.
Unlike
other
branches
of
law
which
can
frequently
be
rectified
by
legislation,
the
courts,
or
at
least
the
House
of
Lords,
having
of
their
own
volition
deprived
themselves
of
an
extremely
important
power
of
checking
unwarranted
executive
action,
we
may
be
quite
sure
that
no
remedial
legislation
will
be
forthcoming
to
re-establish
a
judicial
power
which
was
only
gained
after
a
long
and
bitter
fight.
It
seems,
to
this
writer
at
any
rate,
unfortunate
that
the
power
of
Canadian
Courts
to
check
possible
interference
with
the
administration
of
justice
by
Dominion
or
Provincial
Executives
should
be
swept
away
by
a
decision
of
a
body,
no
matter
how
august,
which
is
totally
unfamiliar
with
Canadian
conditions.
“The
comments
of
Professor
Goodhart
referred
to
above
are
as
follows:
“
‘The
importance
of
Duncan
v.
Cammell,
Laird
&
Co.
Ltd,,
[1942]
1
All
E.R.
587,
is
marked
by
the
fact
that
seven
members
of
the
House
of
Lords
sat
to
hear
the
appeal.
Moreover,
the
unusual
course
was
followed
of
delivering
only
a
single
judgment
which
was
prepared
by
the
Lord
Chancellor
after
‘‘consultation
with
and
contribution
from”?
the
other
learned
Lords.
The
case
involved
two
points:
(1)
in
what
circumstances
could
a
Minister
of
State
refuse
to
produce
documents
in
an
action
between
two
private
litigants
on
the
ground
that
such
production
would
be
against
the
public
interest,
and
(2)
whether
this
objection
should
be
treated
by
the
Court
as
conclusive,
or
whether
there
were
circumstances
in
which
the
judge
should
himself
look
at
the
documents
before
ruling
as
to
their
production?
It
is
obvious
that
this
case
raises
questions
of
the
highest
con-
stitutional
importance,
for
if
a
Minister
of
State
can
refuse
to
produce
any
documents
he
sees
fit
to
claim
are
privileged,
then
the
powers
of
the
Courts
to
do
justice
may
be
seriously
curtailed
if
at
any
time
the
Executive
should
assume
an
arbitrary
position.
This
is
all
the
more
serious
at
a
time
when
the
activities
of
the
State
are
rapidly
increasing,
and
it
is
engaged
more
and
more
in
ordinary
mercantile
transactions.
It
is
odd,
therefore,
that
so
much
importance
has
been
attached
by
certain
commentators
to
Liversidge
v.
Anderson
(1941),
58
T.L.R.
45,
which
concerned
the
construction
of
an
Order
effective
only
during
the
war,
and
so
little
to
the
present
case
which
will
have
a
permanent
influence
on
the
position
of
executive
officers.
‘
“The
importance
of
the
case
does
not
lie
in
the
conclusion
reached
by
their
Lordships,
for
on
the
facts
of
the
case
there
can
have
been
little
doubt
that
the
documents
were
privileged.
They
related
to
the
structure
of
the
submarine
Thetis,
and
therefore
any
disclosure
of
their
contents
might
have
been
of
value
to
the
enemy.
The
only
ground
on
which
the
plaintiffs
sought
to
justify
their
application
was
that
these
documents
have
been
produced
before
the
Tribunal
of
Inquiry
into
the
loss
of
the
Thetis,
and
that
reference
to
them
had
been
made
in
the
report.
That
inquiry
had,
however,
been
held
in
secret,
and
the
reference
was
only
to
a
small
part
of
the
documents.
The
importance
of
the
case,
therefore,
does
not
lie
in
these
special
facts,
but
in
the
broad
statement
of
principle
contained
in
the
Lord
Chancellor’s
judgment.
‘*
‘The
law
as
now
definitely
established
is
that
‘‘a
Court
of
law
ought
to
uphold
an
objection,
taken
by
a
public
department
when
called
on
to
produce
documents
in
a
suit
between
private
citizens,
that,
on
grounds
of
public
policy,
the
documents
should
not
be
produced.”
This
objection
is
unlimited
and
extends
to
all
documents
which
a
public
department
considers
ought
not
to
be
disclosed.
At
the
conclusion
of
his
judgment
the
Lord
Chancellor
stated
the
grounds
on
which
a
Minister
ought
to
base
such
a
claim,
but
this
advice
is
only
of
a
hortatory
character:
for
all
practical
purposes
the
Executive
is
free
to
refuse
production
of
any
and
all
documents.
‘*
‘As
the
Lord
Chancellor
pointed
out,
the
present
case
was
argued
on
the
assumption
that
there
was
no
recorded
decision
of
the
House
of
Lords
on
this
point,
but
Lord
Thankerton,
apparently
after
the
arguments
were
con-
eluded,
called
attention
to
Lord
Eldon’s
decision
in
Earl
v.
Vass
(1822),
1
Shaw
229,
which
was
‘‘very
much
to
the
point.’’
The
omission
of
counsel
to
notice
this
case
can
be
explained
on
the
ground
that
it
is
not
cited
in
the
leading
English
textbooks
on
the
law
of
evidence.
It
is,
however,
discussed
at
length
in
s.
2375
of
Professor
John
H.
Wigmore’s
monumental
work
on
Evidence.
It
is
unfortunate
that
in
the
present
case
no
reference
was
made
to
his
volumes
for
he
has
dealt
with
the
question
of
State
secrets
more
thoroughly
than
has
any
other
writer
on
the
subject.
After
pointing
out
that
the
privilege
is
clearly
established
where
questions
of
international
politics
or
military
defence
are
involved,
he
stresses
the
danger
of
extending
the
rule
to
the
purely
internal
affairs
of
the
Government.
‘‘It
is
urged,’’
he
says,
referring
to
Beatson
v.
Skene
(1860),
5
H.
&
N.
888,
which
was
cited
with
approval
in
the
present
ease,
‘‘that
the
‘public
interest
must
be
considered
paramount
to
the
individual
interest
of
a
suitor
in
a
court
of
justice.’
As
if
the
public
interest
were
not
involved
in
the
administration
of
justice!
As
if
the
denial
of
justice
to
a
single
suitor
was
not
as
much
a
public
injury
as
in
the
disclosure
of
any
official
record!’’
After
analyzing
the
various
cases
on
this
point,
in
many
of
which
the
claim
to
public
interest
was
only
a
fiction,
the
real
purpose
being
to
protect
an
individual,
he
concludes
as
follows:
‘‘
Rules
of
law
much
more
innocent
in
appearance
have
been
made
to
serve
evil
purposes
upon
a
large
scale.
‘No
nation’
(in
the
words
of
a
great
American
jurist,
Edward
Livingston)
‘ever
yet
found
any
inconvenience
from
too
close
an
inspection
into
the
conduct
of
its
officers
;
but
many
have
been
brought
to
ruin,
and
reduced
to
slavery,
by
suffering
gradual
imposition
and
abuses
which
were
imperceptible
only
because
the
means
of
publicity
had
not
been
secured’.’’
A
similar
view
was
expressed
by
the
Judicial
Committee
in
Robinson
v.
State
of
South
Australia
(No.
2),
[1981]
A.C.
704
where
Lord
Blanesburgh
said
(at
p.
714):
‘‘
And
first
of
all,
it
is,
their
Lordships
think,
now
recognized
that
the
privilege
is
a
narrow
one,
most
sparingly
to
be
exercised.’’
The
present
case
has
established
that
the
privilege
is
an
unlimited
one,
to
be
exercised
whenever
the
Minister
sees
fit.
“
‘The
second
point
in
the
present
case
concerned
the
question
whether
when
the
objection
had
been
duly
taken,
the
judge
should
treat
it
as
conclusive.
Here
the
precedents
were
evenly
divided
as
in
some
eases
the
judges
had
looked
at
the
documents
and
in
others
they
had
not.
In
the
Robin-
son
case
(supra)
the
Judicial
Committee
ordered
the
Court
to
inspect
the
documents,
as
it
felt
that
“the
zealous
champion
of
Crown
rights’’
might
frequently
be
tempted
to
take
a
prejudicial
view
of
the
matter.
In
the
present
case
the
House
of
Lords
took
the
contrary
view
on
the
ground
that
‘‘those
who
are
responsible
for
the
national
security
must
be
the
sole
judges
of
what
the
national
security
requires.”
This
may
be
true
during
the
time
of
war
and
where
matters
of
national
security
are
concerned,
but,
with
all
respect,
it
is
equally
true
in
times
of
peace
and
where
the
matter
of
public
interest
is
concerned
not
with
national
security
but,
for
example,
with
the
mismanagement
of
a
wheat
marketing
scheme
as
in
the
Robinson
Case**.
On
this
point
Professor
Wigmore
says
(s.
2376)
:
“The
truth
cannot
be
escaped
that
a
Court
which
abdicates
its
inherent
function
of
determining
the
facts
upon
which
the
admissibility
of
evidence
depends
will
furnish
to
designing
officials
too
ample
opportunities
for
abusing
the
privilege.
The
lawful
limits
of
the
privilege
are
extensible
beyond
any
control,
if
its
applicability
is
left
to
the
determination
of
the
very
official
whose
interest
it
is
to
shield
his
wrongdoing
under
the
privilege.
Both
principle
and
policy
demand
that
the
determination
of
the
privilege
shall
be
for
the
judge’’.’
2
2
Much
of
the
Cammell,
Laird
reasoning
leaves
itself
open
to
more
than
doubtful
acceptance.
I
enumerate:
(1)
It
is
true
that
in
the
opening
paragraph
the
question
is
referred
to
as
one
of
‘‘high
constitutional
importance’’,
but
the
expressed
ratio
of
the
decision
patently
departs
from
this,
and
the
House
proceeds
to
deal
with
the
question
constantly
as
one
of
“practice”,
for
example,
at
p.
641
:
‘‘
The
practice
in
Scotland,
as
in
England,
may
have
varied,
by
the
approved
practice
in
both
countries
is
to
treat
a
ministerial
objection
taken
in
proper
form
as
conclusive.”
(My
italics.)
But
the
jurisdiction
of
a
Court
as
a
Court
cannot
be
taken
away
by
a
Rule
of
practice.
It
is
a
substantive
constitutional
power,
to
which
any
Rule
of
practice
must
necessarily
be
subordinate.
The
distinction
between
‘‘practice’’
and
constitutional
competence
is
one
more
readily
apparent
in
a
federal
state
like
Canada,
than
in
a
unitary
one
such
as
the
United
Kingdom.
“Practice”
of
course
is
only
the
method
of
applying
an
already
existing
substantive
power:
cf.
Bonthoux
v.
Bella,
[1952]
1
D.L.R.
496
at
pp.
502-4;
102
Can.
CC.
83
at
pp.
89-91.
But
“practice”
is
used
in
the
Cammell,
Laird
case
definitely
in
a
way
to
deprive
a
Court
of
its
inherent
jurisdiction.
Also
(2)
the
cited
reference
to
similarity
of
practice
in
Scotland
and
England
is
not
borne
out
by
Henderson
v.
M’Gown,
[1916]
S.C.
821,
a
case
in
circumstances
somewhat
like
Weber
v.
Pawlik,
supra;
the
first
Division
of
the
Scottish
Court,
after
conferring
with
the
second
Division
of
the
Court,
affirmed
the
inherent
power
of
the
Judge
vis-à-vis
the
political
officer
of
Government,
to
decide
the
question,
although
in
result
the
Court
held
the
documents
were
not
material
to
the
defendant’s
case
because
he
would
not
be
prejudiced
by
their
non-production;
Henderson
v.
M’Gown
was
not
referred
to
in
the
Cammell,
Laird
case,
although
the
latter
relied
strongly
on
the
prior
Scottish
case
of
Admiralty
Commissioners
v.
Aberdeen
Steam
Trawling
&
Fishing
Co.,
[1909]
S.C.
335,
which
Henderson
v.
M’Gown
had
distinguished.
Moreover
(3)
if
the
Minister’s
power
is
to
be
regarded
as
one
of
‘‘practice’’,
then
each
jurisdiction
is
entitled
to
its
own
and
the
Cammell,
Laird
case
is
not
to
be
invoked
in
Canada
as
a
conclusive
authority
for
Canadian
practice;
it
could
be
helpful
at
most
as
an
illustration
of
what
is
done
in
some
other
jurisdiction
dissimilar
from
our
own.
Also
(4)
the
decisions
cited
in
the
Cammell,
Laird
case
seem
to
be
vestigial
remnants
of
old
Colonial
days,
when
officialdom
was
invested
with
a
prestige
of
protective
official
and
class
privilege,
vis-à-vis
the
“lower
orders’’
whose
growing
political
influence
was
then
beginning
to
make
itself
felt.
The
opening
reference
in
Cammell,
Laird
to
Earl
v.
Vass
(1822),
1
Shaw’s
Se.
App.
229,
is
illustrative.
The
terms
“public
interest’’
and
“public
policy’’
were
often
used
in
a
sense
to
safeguard
the
position
of
the
privileged
classes.
It
was
the
outlook
of
an
era
that
was
far
more
aristocratic
than
democratic.
Spender
{Government
of
Mankind—1938)
observed
(p.
279)
that
at
the
end
of
the
18th
century
out
of
a
population
of
eight
millions
only
165,000
had
the
vote.
In
practice
the
Government
was
that
of
“small
landed
oligarchy”.
‘‘The
people,’’
said
a
Bishop
of
the
established
Church
(Bishop
Horsley
quoted
by
Buckle
in
History
of
Civilization),
“had
no
concern
with
the
laws
except
to
obey
them’’.
The
Reform
Bill
of
1832
admitted
about
half
the
middle
class
and
left
the
workers
totally
unenfranchised.
It
was
not
until
1877
that
town-workers
were
brought
in
by
a
measure
of
household
suffrage
in
the
boroughs
(Spender—p.
304),
and
not
until
1892
were
agricultural
workers
with
household
qualifications
enfranchised.
It
was
not
until
1918
that
all
property
qualifications
were
swept
away
and
the
suffrage
given
as
a
right
to
all
adults
of
both
sexes.
The
Cammell,
Laird
case
speaks
of
‘‘contrary
to
the
public
welfare’’,
“public
interest”
and
“public
policy”
interchangeably
in
the
sense
that
a
thing
may
be
so
described
if
it
is
a
danger
to
the
public
good
or
injurious
to
the
public
benefit.
The
test
of
that
of
course
(outside
an
act
of
state
or
danger
to
the
safety
of
the
state)
must
be
found
in
the
expression
of
the
mass
will
of
the
people,
reflected
by
the
trend
of
their
vote
during
significant
periods.
The
attitude
towards
the
public
good
reflected
in
a
vote
of
a
restricted
suffrage
cannot
escape
being
their
own
outlook,
contrasted
to
that
of
the
general
will
in
a
universal
suffrage.
In
a
country
like
Canada
the
background
of
the
popular
attitude
towards
officialdom
may
be
expected
to
be
different
from
that
of
the
decisions
which
seem
to
govern
the
conclusions
reached
in
the
Cammell,
Laird
case.
Also
(5)
Cammell,
Laird
quoted
extensively
from
Beatson
v.
Skene
(1860),
5
H.
&
N.
838
at
p.
853;
157
E.R.
1415.
Wigmore
on
Evidence,
vol.
VIII,
examines
this
case
analytically
at
pp.
790-1,
and
describes
the
invocation
of
secrecy
of
State
affairs
as
a
resort
to
fiction:
“First,
because
the
topic
involved
was
only
one
of
the
plaintiff’s
personal
conduct
in
his
own
cavalry
corps;
next,
because
the
whole
subject
and
its
details
had
long
and
notoriously
been
the
theme
of
military
and
public
gossip,
and
was
in
its
inception
known
to
scores
of
persons;
and,
again,
because
the
very
Court
which
appealed
to
this
inviolable
secrecy
for
withholding
the
notes
of
the
testimony
permitted
a
person
who
had
been
present
at
the
military
court
to
prove
publicly
the
same
oral
testimony
of
the
defendant
which
was
recorded
in
the
suppressed
minutes.”
Also
(6)
after
holding
that
the
decision
regarding
production
must
be
the
decision
of
the
Minister,
Cammell,
Laird,
[1942]
A.C.
at
p.
642
said:
“It
is
important
to
remember
that
the
decision
ruling
out
such
documents
is
the
decision
of
the
judge.
’
’
This
savours
of
verbalistic
equation,
as
one
could
formulate
an
algebraic
equation
proving
5
equals
4.
It
is
true
that
a
Judge
in
the
Cammell,
Laird
sense
does
in
form
rule
out
the
document,
but
it
is
because
his
faculties
of
judgment
for
deciding
its
admissibility
have
first
been
taken
away
from
his
and
exercised
by
the
Minister.
Also
(7)
after
declaring
the
jurisdiction
is
entirely
that
of
the
Minister
over
and
above
any
judicial
interference
Cammell,
Laird
at
p.
642,
proceeds
to
instruct
the
Minister
upon
the
proper
exercise
of
his
power.
But
if
the
Minister
has
the
sole
power,
it
must
follow
the
Courts
cannot
tell
him
how
he
should
exercise
it.
Inherent
in
what
has
been
said
heretofore
are
several
points
that
invite
expression.
First,
in
a
federal
country
like
Canada,
the
balance
between
Parliament,
the
Judiciary
and
the
Executive,
is
vital.
If
either
Parliament
or
the
Executive
begin
even
unconsciously
to
encroach
upon
or
influence
the
Judiciary,
the
foundations
of
our
system
are
immediately
imperilled.
I
take
it
for
granted
that
the
independence
of
the
Judiciary
and
the
jurisdiction
of
the
superior
Courts
as
Courts
is
a
pivot
upon
which
the
safety
of
our
democratic
federal
system
turns.
Considering
that
it
is
the
foundational
function
of
a
Court
as
a
Court
to
decide
upon
the
relevancy
and
admissibility
of
evidence
in
the
particular
case
before
the
Court,
and
the
relation
of
that
case
to
the
public
welfare,
it
must
follow
that
if
the
Court
accepts
the
statements
of
a
single
Minister
or
of
the
Executive
in
substitution
for
its
own
judicial
function
and
judgment
the
Court
thereby
confesses
to
the
litigants
and
to
the
public
at
large
that
the
Judge
is
abdicating
the
essential
duties
his
obligations
of
office
demand
of
him.
It
is
for
the
Judge
and
Judge
alone
to
evaluate
and
decide
in
each
ease
not
only
the
relevancy
and
admissibility
of
evidence
but
also
its
relation
to
the
public
welfare.
I
can
see
no
objection
to
a
Minister
or
deputized
official
in
person
or
through
counsel
explaining
to
the
Court
the
reasons
why
he
thinks
the
introduction
of
a
particular
document
or
other
evidence
in
Court
would
be
contrary
to
the
public
welfare,
but
it
is
for
the
Judge
and
him
alone
to
decide
(subject
of
course
to
appeal
in
the
ordinary
way)
after
hearing
both
sides,
why
it
ought
or
ought
not
to
be
admitted
in
evidence.
Secondly,
it
is
rather
remarkable
to
suggest
that
the
judgment
of
a
political
head
of
the
Department
shall
be
substituted
for
that
of
a
Court.
The
Minister
at
best
is
a
transient
holder
of
office,
subject
to
all
the
vicissitudes
of
a
political
climate
and
a
party
policy
that
completely
envelop
a
man
who
is
responsible
to
the
political
expediency
of
Parliament,
and
who
belongs
to
the
party
in
office
which
humanly
seeks
to
remain
in
office.
<A
Canadian
Court
is
removed
from
all
these
ties.
The
Minister
may
have
to
rely
for
his
opinion
upon
the
views
of
officials
within
his
Department.
As
Wigmore
on
Evidence
puts
it,
vol.
VIII,
p.
799:
“
Shall
every
subordinate
in
the
department
have
access
to
the
secret,
and
not
the
presiding
officer
of
Justice?
Cannot
the
constitutionally
co-ordinate
body
of
government
[viz.
the
Court]
share
the
confidence?’’
I
think
it
is
strange
for
anyone
to
believe
that
the
people
of
this
Province
or
the
people
of
Canada
could
seriously
accept
the
opinion
of
a
political
head
of
a
Department
as
equal
to
that
of
a
Court
in
a
matter
affecting
the
administration
of
justice
in
the
decision
of
a
case
in
Court.
Thirdly,
jurisdiction
of
a
Court
to
deny
production
must
be
related
to
an
act
of
state
or
danger
to
the
safety
of
the
state.
But
apart
from
that
some
theory
of
state
necessity
is
not
enough.
In
Entick
v.
Carrington
(1765),
19
St.
Tr.
1030,
Lord
Camden
said
at
p.
1073:
‘
And
with
respect
to
the
argument
of
state
necessity,
or
a
distinction
that
has
been
aimed
at
between
state
offences
and
others,
the
common
law
does
not
understand
that
kind
of
reasoning,
nor
do
our
books
take
notice
of
any
such
distinctions.’’
If
there
is
any
necessity
for
secrecy
of
documents
in
the
proper
functioning
of
a
public
service,
then
it
is
for
a
statute
to
so
declare
the
measure
of
such
secrecy;
and
it
would
be
surprising
for
the
power
of
the
Courts
to
be
denied
in
any
such
statute.
The
Cammell,
Laird
case
itself
holds
(p.
642)
it
is
not
enough
to
deny
production
of
documents
because
they
are
“state
documents’’
or
are
“official”
or
are
marked
“confidential”.
In
Eshugbayi
v.
Nigeria
Government,
[1931]
A.C.
662,
the
true
meaning
of
“act
of
state’’
is
described
at
p.
671:
‘‘This
phrase
is
capable
of
being
misunderstood.
As
applied
to
an
act
of
the
sovereign
power
directed
against
another
sovereign
power
or
the
subjects
of
another
sovereign
power,
not
owing
temporary
allegiance,
in
pursuance
to
sovereign
rights
of
wag
ing
war
or
maintaining
peace
on
the
high
seas
or
abroad,
it
may
give
rise
to
no
legal
remedy.
But
as
applied
to
acts
of
the
executive
directed
to
subjects
within
the
territorial
jurisdiction
it
has
no
special
meaning,
and
cane
give
no
immunity
from
the
jurisdiction
of
the
Court
to
inquire
into
the
legality
of
the
act.’’
(My
italics.)
Fourthly,
another
of
the
extraordinary
aspects
is
the
ascription
of
power
to
a
single
Minister.
Neither
in
Weber
v.
Pawlik,
nor
Reg.
v.
Snider
did
the
Minister
speak
with
the
authority
of
the
Executive
as
such.
If
reliance
is
placed
upon
any
remnant
of
the
prerogative,
it
must
be
vested
in
the
Executive
as
such
and
not
in
one
of
twenty
members
of
the
Executive,
unless,
of
course,
it
is
shown
the
single
Minister
is
authorized
by
the
Cabinet
to
speak
for
the
executive.
A
Minister
as
a
Minister
can
speak
only
for
his
Department,
and
then
only
on
an
inferior
level
to
the
Executive
and
in
matters
that
cannot
represent
the
mind
or
policy
of
the
party
then
in
command
of
the
Government.
In
short,
in
matters
that
affect
civil,
inherent
or
constitutional
rights,
the
Minister
can
speak
with
indisputable
authority
only
by
authority
of
statute
or
by
expressed
sanction
of
the
Executive
itself
empowered.
Fifthly,
even
if
the
Minister
speaks
with
the
authority
of
the
Executive
vis-à-vis
the
Courts,
then
in
a
federal
country
like
Canada,
executive
action
is
not
proof
of
its
inherent
power:
and
see
the
recent
Steel
case
in
the
United
States
(1952),
30
Can.
Bar
Rev.
at
pp.
480
et
seq.
(Bernard
Schwartz).
This
doctrine
clashes
with
the
House
of
Lords
decision
in
Liversidge
v.
Anderson,
[1942]
A.C.
206,
closely
allied
in
principle
to
the
Cammell,
Laird
case.
But
it
seems
to
be
supported
by
the
Judicial
Committee
in
the
Ceylon
appeal—Nakkuda
Ali
v.
Jayaratne
(1950),
66
(Pt.
2)
T.L.R.
214.
The
latter
case
as
did
Liversidge
v.
Anderson
concerned
the
finality
(vis-à-vis
the
Courts)
of
the
decision
by
a
high
official
*"where
he
had
reasonable
grounds
to
believe’’.
At
p.
219
the
Privy
Council
said
through
Lord
Ratcliffe:
"After
all,
words
such
as
these
are
commonly
found
when
a
Legislature
.
.
.
confers
powers
on
a
Minister
or
official.
However
read,
they
must
be
intended
to
serve
in
some
sense
as
a
condition
limiting
the
exercise
of
an
otherwise
arbitrary
power.
But
if
the
question
whether
the
condition
has
been
satisfied
is
to
be
conclusively
decided
by
the
man
who
wields
the
power
the
value
of
the
intended
restraint
is
in
effect
nothing.’’
(My
italics).
The
Judicial
Committee
treated
words
in
the
Regulation
"
where
the
controller
has
reasonable
grounds
to
believe
that
any
dealer
is
unfit
to
be
allowed
to
continue
as
a
dealer’’
as
4
"
imposing
a
condition
that
there
must
in
fact
exist
such
reasonable
grounds,
known
to
the
controller,
before
he
can
validly
exercise
the
power
of
cancellation’’.
Reading
these
two
excerpts
together,
it
can
mean
only
that
whether
the
‘‘reasonable
grounds
exist’’
must
be
reviewable
by
some
tribunal
other
than
the
controller
himself—and
of
course
that
must
mean
a
Court.
To
make
that
review
the
Court
must
be
informed
of
the
facts,
determine
if
there
are
reasonable
grounds,
and
decide
whether
the
controller
has
acted
reasonably
and
justly
and
not
arbitrarily.
It
is
true
the
Nakkuda
case
held
against
certiorari
in
a
proposition
(not
applicable
here)
entangled
in
a
distinction
be.
tween
the
judicial,
quasi-judicial,
and
administrative
powers
of
the
controller;
but
R.
v.
Brixton
Prison
(Governor)
(1916),
86
L.J.K.B.
62,
may
be
referred
to
usefully
where
Low,
J.,
said
at
p.
66.
"‘I
do
not
agree
that
it
is
for
the
Executive
to
come
here
and
simply
say,
‘The
man
is
in
custody,
and
therefore
the
right
of
the
High
Court
to
interfere
does
not
apply,
because
the
custody
is
at
the
moment
technically
legal.’
I
say
that
that
answer
of
the
Crown
will
not
do
if
this
Court
is
satisfied
that
what
is
really
in
contemplation
is
the
exercise
of
an
abuse
of
power.
The
arm
of
the
law
would
have
grown
very
short,
and
the
power
of
the
Court
very
feeble,
if
that
were
the
case.”
For
these
observations
were
approved
and
added
to
by
the
Judicial
Committee
in
Eshugbayi
v.
Government
of
Nigeria,
[1931]
A.C.
662,
where
it
is
of
some
significance
to
note
the
Governor
of
Nigeria
has
acted
solely
under
Executive
powers
and
in
no
sense
as
a
court
:
ef.
also
Home
Où
Distributors
Ltd.
v.
A.-G.
B.C.,
[1939]
3
D.L.R.
397
at
pp.
398-9,
54
B.C.R.
48.
Sixthly,
mention
should
be
made
of
an
underlying
constitutional
principle
of
long
standing
which
the
Cammell,
Laird
and
Liversidge
cases
and
decisions
cited
therein
have
not
noted
when
surrounding
a
single
head
of
a
Department
of
state
with
a
halo
of
power
transcendent
to
that
of
the
superior
Courts.
These
decisions
impute
that
his
mere
opinion
as
Minister
is
to
be
accepted
by
the
Courts
with
blind
confidence.
But
Lord
Lyndhurst,
who
has
been
thrice
Lord
Chancellor,
said
in
the
House
of
Lords
on
July
12,
1853
(Life
of
Lord
Lyndhurst
by
Sir
Theodore
Martin,
K.C.B.
(1883)
at
p.
456):
‘‘Confidence
generally
ends
in
credulity
.
.
.
‘Oh,
for
the
old
Parliamentary
word
"jealousy,”
‘
exclaimed
Mr.
Fox
.
.
.
'instead
of
its
modern
substitute
‘‘confidence’’.’
’’
And
not
only
between
Parliament
and
the
Ministers
according
to
Lord
Lyndhurst
should
this
jealousy
be
maintained
but
between
Parliament
and
the
Crown
also.
Thus
speaking
in
the
Wensleydale
Peerage
case
[Hansard
Parliamentary
Debates,
vol.
CXL,
p.
1168]
on
February
22,
1856,
he
said:
"My
Lords,
the
principle
upon
which
I
proceed—the
old
constitutional
principle—is,
that
I
will
give
the
Crown
no
power
that
is
capable
of
being
abused,
unless
some
great
and
overruling
necessity
can
be
shown
to
exist
.
.
.
I
look
with
all
constitutional
jealousy,
and
not
with
confidence,
to
those
who
are
the
depositaries
of
power.
I
remember
it
was
over
and
over
again
said
by
one
of
the
most
illustrious
statesmen
[Charles
James
Fox—1749-1806]
England
ever
produced,
that
jealousy,
and
not
confidence,
was
the
maxim
on
which
the
British
constitution
was
based
.
.
.
Jealousy
and
not
confidence
is
the
eternal
governing
principle
of
the
British
constitution
J
f
(My
italics.)
It
is
almost
axiomatic
to
say
people
are
nervous
of
uncontrolled
power
that
may
be
claimed
by
high
political
officials;
history
recognizes
power
is
insatiable
and
that
it
is
inevitably
abused.
The
poet
Blake
expressed
this
almost
universal
atti-
tude
in
the
graphic
lines:
"‘The
strongest
poison
ever
known
came
from
Caesar’s
Laurel
Crown.’’
The
deep
constitutional
principle
Lord
Lyndhurst
described
exists
also
in
the
United
States.
Mr.
J.
W.
Davis
addressing
the
Supreme
Court
of
the
United
States
as
counsel
on
behalf
of
the
steel
mills
on
the
injunction
to
restrain
their
seizure
by
the
President
on
his
own
Executive
initiative
without
the
enabling
sanction
of
the
Congress,
referred
to
it—see
Time
Magazine—May
26,
1952:
"‘He
[Mr.
J.
W.
Davis]
softly
quoted
the
words
that
Jefferson
wrote
in
the
Kentucky
Resolutions,
which
in
a
sentence
sum
up
the
theory
that
public
officials
are
servants
of
the
law
:
“In
questions
of
power
let
no
more
be
heard
of
confidence
in
man,
but
bind
him
down
from
mischief
by
the
chains
of
the
Constitution.’
9>
(My
italics.)
"
"
Privilege
is
like
a
persistent
bush
fire,
extinguished
in
one
place.
only
to
blaze
up
in
another’’
(H.
G.
Hanbury—(1952),
68
L.Q.
Rev.
at
p.
174).
Seventhly,
in
some
rare
case
it
could
happen
perhaps
that
an
income
tax
statement
might
relate
to
an
act
of
state
or
affect
the
safety
of
the
state.
But
if
it
is
sought
outside
statute
to
give
it
the
same
protection
because
of
some
theory
of
proper
functioning
of
a
public
service
(a
category
suggested
in
Cammell,
Laird,
[1942]
A.C.
at
p.
642),
it
is
incumbent
to
examine
the
foundation
for
such
a
theory.
In
what
way
could
production
of
an
income
statement
in
Court
interfere
with
the
proper
functioning
of
the
Income
Tax
Department?
To
admit
a
document
in
Court
in
a
civil
case
between
A
and
B,
it
must
first
be
relevant
to
the
issues
between
them.
It
must
have
something
to
do
with
the
case,
or
the
conduct
of
the
parties
in
relation
to
the
issues
of
the
case.
Why
should
production
of
such
a
document
from
a
Government
office
interfere
with
proper
functioning
of
that
office?
Production
of
documents
does
not
interfere
with
the
functioning
of
the
Land
Registry
office.
Why
should
it
interfere
with
the
functioning
of
the
Income
Tax
office
?
Weber
v.
Pawhk
was
a
suit
between
two
partners.
The
active
partner
filed
income
tax
statements
of
the
partnership
over
several
years
and
lost
or
destroyed
his
books.
The
silent
partner
did
not
become
aware
of
the
statements
of
profits,until
the
income
tax
people
demanded
taxes
from
him.
The
silent
partner
who
sought
to
have
the
income
tax
statements
produced
in
Court
was
as
much
interested
in
the
documents
as
the
partner
who
filed
them
;
they
were
mutually
concerned.
Production
in
Court
could
affect
no
one
else.
To
say
as
it
was
said
by
the
Minister
in
that
case,
that
production
of
such
documents
is
contrary
to
the
public
interest,
is
to
push
the
doctrine
of
public
interest
to
a
point
that
it
loses
reality
and
approaches
the
fantastic.
It
is
well
known
that
a
great,
if
not
the
greater,
amount,
of
the
income
tax
is
collected
from
corporations,
whose
balance
Sheets
are
also
filed
in
other
offices
open
to
the
public.
The
availability
to
public
knowledge
of
these
balance
sheets
does
not
interfere
with
the
proper
functioning
of
the
income
tax
office.
Why
should
it
not
function
also
in
the
case
of
individual
persons?
The
incomes
of
labour
and
salaried
people
are
well
known
or
at
least
easily
learned
or
estimated.
No
one,
I
think,
will
seriously
suggest
that
the
average
business
man
will
make
dishonest
returns
because
perhaps
at
some
remote
time
in
the
future
his
income
tax
returns
may
be
producible
in
a
Court.
An
Income
Tax
Appeal
Board
and
reports
of
the
decisions
have
been
established.
Why
should
a
taxpayer
who
does
not
appeal
his
assessment
be
in
any
different
position
regarding
secrecy
than
the
taxpayer
who
does?
In
the
last
analysis
the
only
ground
left
is
that
some
people
who
make
profits
illegally
or
illicitly
and
who
now
think
it
is
wiser
to
declare
them
in
some
form
or
other,
will
find
means
of
evading
disclosure.
As
I
understood
the
argument
this
ground
was
relied
upon.
But
is
it
to
be
assumed
that
men
who
now
declare
returns
relating
to
^bootlegging”
of
various
kinds,
to
swindling,
to
forms
of
illegal
drug
transactions,
etc.
etc.,
will
not
do
so
if
they
think
their
returns
may
be
producible
in
Court?
But
it
may
work
out
the
other
way,
and
there
may
be
more
danger
to
such
people
if
they
do
not
disclose
their
profits
truthfully.
Their
failure
to
do
so
may
become
more
apparent
if
their
returns
are
produced
in
Court.
In
any
event
the
percentage
of
taxpayers
of
this
type
cannot
be
substantial.
Moreover
one
would
think
that
if
criminal
activities
are
disclosed
in
income
tax
returns,
it
would
be
the
duty
of
the
Minister
to
make
this
known
to
the
Attorney-General.
One
cannot
imagine
a
Minister
of
the
Crown
keeping
secret
the
deceitful
or
criminal
activities
of
a
taxpayer
so
that
the
Crown
may
obtain
a
share
of
the
criminal
profits.
Without
pursuing
the
subject
further
it
ought
to
be
evident
that
disclosure
of
income
tax
returns
in
Court
can
have
no
rational
relation
to
public
policy
in
any
true
sense;
nor
can
it
have
any
understandable
interference
with
the
proper
functioning
of
the
Income
Tax
Department.
In
any
event
the
whole
field
of
income
tax
is
covered
by
statute,
and
the
measure
of
any
secrecy
Parliament
intended
to
be
attached
to
it
is
to
be
found
in
those
statutes.
The
Courts
refrain
as
far
as
they
can
from
admitting
evidence
relating
to
the
private
affairs
of
litigants,
such
as
intimate
details
of
their
health,
financial,
domestic
or
other
matters.
But
if
introduction
of
private
affairs
becomes
material
to
the
decision
of
a
case,
then
unless
an
act
of
state,
or
safety
of
the
state
is
involved,
the
administration
of
justice
must
deny
secrecy.
To
hold
otherwise,
would
force
in
principle
the
enlargement
of
secrecy
in
the
whole
field
of
an
individual’s
private
life
to
the
advantage
of
evil
and
irresponsible
persons,
and
to
the
disadvantage
of
the
overwhelming
majority
of
good
citizens.
In
the
eighth
place,
because
of
the
two
direct
clashes
between
Cammell,
Laird
and
Robinson
v.
State
of
South
Australia,
[1931]
A.C.
704,
it
may
be
essential
to
emphasize
that
the
latter
decision
cannot
be
distinguished
because
a
headnote
may
inadequately
indicate
its
rationale
was
governed
by
insufficiency
and
vagueness
in
the
form
of
the
Government’s
claim
for
privilege.
Study
of
the
case
shows
the
decision
was
founded
on
the
inherent
power
of
the
Courts—see
p.
716.
The
equivalent
of
our
M.R.
361
(0.
31,
R.
19A(2))
was
additionally
relied
on
as
“‘another
course
open’’—see
p.
722.
Our
Rule
which
has
the
force
of
statute—see
Court
Rules
of
Practice
Act,
R.S.B.C
1948,
c.
293—reads:
‘Where
on
an
application
for
an
order
for
inspection
privilege
is
claimed
for
any
document,
it
shall
be
lawful
for
the
Court
or
a
Judge
to
inspect
the
document
for
the
purpose
of
deciding
as
to
the
validity
of
the
claim
of
privilege.^
(My
italics.)
That
rule
with
the
force
of
statute
should
end
the
debate
and
exclude
Cammell,
Laird
in
this
jurisdiction,
and
see
also
R.
26
of
our
Criminal
Appeal
Rules,
1943,
under
Criminal
Code
Section
1021(13),
(14)
and
(18).
I
might
add
that
state
policy
had
much
more
to
recommend
itself
in
the
Robinson
ease
than
the
subject-matters
of
Weber
v.
Pawlik
and
Reg.
v.
Snider.
The
State
of
South
Australia
had
established
by
statute
a
wheat
marketing
scheme,
the
substance
of
which
was
that
all
farmers
in
the
state
were
compelled
to
deliver
their
wheat
to
the
state
Government
which
assumed
the
duty
of
accepting
and
marketing
it
and
distributing
the
net
proceeds
among
the
growers
in
proportion
to
the
quantities
delivered.
This
state
plan
became
an
integral
part
of
the
state’s
economy
and
as
such
was
genuinely
and
truly
state
policy.
Robinson
9
s
action
was
but
one
of
a
‘‘concourse
of
claimants”
for
damages
for
loss
of
wheat
of
the
1916-1917
harvest
(this
was
during
the
first
Great
War).
No
doubt
the
Government
felt
strongly
that
such
suits
interfered
with
the
“proper
functioning’’
of
state
policy
and
the
state
plan.
Such
a
plan
was
not
an
‘‘act
of
state’’
in
the
Eshugbayi
sense,
nor
could
the
suits
by
any
manner
of
means
be
described
legitimately
as
endangering
the
safety
of
the
state.
In
the
result
my
answers
to
the
Reference
questions
are
founded
on
these
reasoned
conclusions:
1.
If
an
act
of
state
(as
that
term
is
defined
in
the
Eshugbayi
case,
[1931]
A.C.
662)
is
involved
or
if
danger
to
the
safety
of
the
state
may
in
reality
be
affected
by
production
of
some
evidence
in
open
Court,
then
such
evidence
is
not
admissible
since
preservation
of
the
state
then
becomes
paramount
to
any
individual
claim
or
right.
2.
That
is
not
so
in
case
of
income
tax
statements
or
evidence
of
a
confidential
kind
in
the
possession
of
state
officials,
unless
they
involve
danger
to
the
safety
of
the
state
or
an
act
of
state.
There
is
no
superior
"
public
interest
‘‘
or
‘‘
public
policy
‘
‘
outside
an
act
of
state
or
danger
to
the
safety
of
the
state,
which
in
the
absence
of
statute
can
supersede
civil
or
inherent
rights
of
the
individual
in
the
administration
of
justice
in
the
Courts.
3.
Until
Parliament
declares
by
statute
that
the
decision
of
the
Executive
shall
be
binding
on
the
Courts
as
to
whether
production
in
Court
of
certain
classes
or
kinds
of
evidence
(within
the
meaning
of
No.
1
herein)
in
reality
affect
an
act
of
state
or
endanger
the
safety
of
the
state,
then
the
decision
regarding
production
in
Court
rests
entirely
within
the
inherent
constitutional
power
of
the
Courts.
4.
That
a
Court
cannot
constitutionally
accept
the
mere
opinion
of
a
political
head
of
a
Department
as
final
regarding
the
admissibility
of
evidence
in
Court.
Subject
to
No.
3
herein,
the
Judge
must
himself
form
his
own
opinion
judicially
and
as
Judge
in
the
case,
and
whether
the
case
is
civil
or
criminal.
5.
That
the
production
of
income
tax
statements
in
Court
is,
within
the
meaning
of
the
Reference
questions,
governed
entirely
by
Section
81
of
the
Income
War
Tax
Act
and
Section
121
of
the
Income
Tax
Act,
which
apply
to
criminal
as
well
as
civil
cases.
6.
That
the
production
of
income
statements
in
such
cases
as
Weber
v.
Pawlik
(a
dispute
between
partners,
wherein
a
partnership
income
tax
returns
were
made
by
one
of
them
without
knowledge
of
the
other),
and
Reg.
v.
Snider
(a
conspiracy
case
re
betting
on
horse-races,
wherein
income
statements
were
subpoenaed
by
the
Crown
prosecutor)
cannot
be
contrary
to
the
public
interest
in
any
justifiable
sense.
Quite
the
contrary,
one
could
easily
conclude
their
production
was
in
the
public
interest
in
order
to
preserve
the
confidence
of
the
publie
in
the
Courts
as
the
constitutional
institution
of
even-handed
justice.
In
addition
to
and
subject
to
the
foregoing
I
adopt
the
following
reasoned
suggestions
in
Wigmore
on
Evidence,
vol.
VIII
at
pp.
800-801,
viz.
:
7.
Any
Executive
or
Administration
Regulation
purporting
in
general
terms
to
authorize
refusal
to
disclose
official
records
in
a
particular
Department,
when
duly
requested
as
evidence
in
a
Court
of
Justice,
should
be
deemed
void.
8.
Any
statute
declaring
in
general
terms
that
official
records
are
confidential
should
be
liberally
construed
to
have
an
implied
exception
for
disclosure
when
needed
in
a
Court
of
Justice.
9.
The
procedure
in
such
eases
should
be
:
a
letter
of
request
from
the
Court
to
the
head
of
the
Department
(accompanying
the
subpoena
to
the
actual
custodian),
stating
the
circumstances
of
the
litigation
creating
the
need
for
the
document;
followed
(in
case
of
refusal)
by
a
reply
from
the
Departmental
head
stating
the
circumstances
deemed
to
justify
the
refusal;
and
then
a
ruling
by
the
Court,
this
ruling
to
be
appealable
and
determinative
of
the
privilege.
In
conclusion
the
proposition
that
a
single
Minister
of
state
(federal
or
provincial)
even
with
the
authority
or
sanction
of
the
Premier
and
other
members
of
the
Cabinet
to
which
he
belongs,
can
step
into
Court
and
with
or
without
giving
reasons
therefor,
forbid
that
Court
to
permit
introduction
of
evidence
vital
to
the
decision
of
a
civil
or
criminal
case,
as
if
it
did
not
interfere
with
the
constitutional
position
of
the
Judiciary,
is
so
startling,
that,
with
deference,
I
feel
it
advisable
once
again
to
point
to
the
increasing
necessity
in
Canada
for
its
own
national
safety
as
a
federal
nation,
to
formulate
a
constitution
similar
(so
far
as
its
similarity
can
apply
to
Canada)
in
principle
to
that
of
the
United
States,
but
originated
by
the
vote
of
the
people,
so
that
Parliament,
the
Executive,
the
Legislatures
and
the
Courts
shall
all
be
bound
by
it.
It
would
of
necessity
contain
the
great
principles
of
the
Declaration
of
Rights,
incorporated
in
the
1791
ten
amendments
to
the
Constitution
of
the
United
States.
(And
see
O’Halloran:
“Inherent
Rights’’
in
1947-48
Fall,
Winter
and
Spring
Issues
of
Osgoode
Hall,
‘‘Obiter
Dicta’’,
and
‘‘Birth
of
the
Constitution
of
a
Nation’’,
March,
1950,
University
of
British
Columbia
Legal
Notes,
p.
63),
and
cf.
Campbell
Motors
Ltd.
v.
Gordon,
[1946]
4
D.L.R.
36
at
pp.
43-5;
62
B.C.R.
481.
ROBERTSON,
J.A.:—By
Order
in
Council
No.
527,
approved
March
1,
1952,
as
amended
by
Order
in
Council
No.
1025,
approved
May
5,
1952,
of
the
Honourable
the
Executive
Council,
a
Reference
was
authorized
to
this
Court
under
the
provisions
of
the
Constitutional
Questions
Determination
Act,
on
certain
questions
Ihereinbefore
set
out],
to
which
my
answers
are
appended,
namely
:
Answer
to
Q.
1(a):
“Yes,
to
enable
the
Court
to
determine
whether
the
facts
discoverable
by
the
production
of
the
documents
would
be
admissible,
relevant
or
prejudicial
or
detrimental
to
the
public
welfare
in
any
justifiable
sense.’’
Answer
to
Q.
1(b):
"Yes,
as
answered
in
1(a).”
Answer
to
Q.
2:
‘‘The
documents
described
in
question
one
are
in
the
possession
of
authorized
Crown
officials
empowered
by
Parliament
to
receive
and
retain
income
tax
returns,
and
as
such
are
producible
in
Court
for
the
purposes
stated
in
the
answer
to
question
one,
but
subject
to
the
answers
to
questions
one
and
three.’’
Answer
to
Q.
3:
"‘No.
But
the
effect
of
the
quoted
relevant
Sections
of
the
described
enactments
render
the
Minister’s
objection
to
production,
in
criminal
proceedings,
subject
to
the
discretionary
jurisdiction
and
consequent
order
of
the
Trial
Judge,
as
set
forth
in
the
answer
to
question
number
one.’’
The
facts
leading
up
to
the
Order
in
Council
are
stated
in
the
reasons
for
judgment
of
the
learned
Chief
Justice
and
need
not
be
repeated
here.
I
now
state
my
reasons
for
so
answering.
So
far
as
civil
proceedings
are
concerned,
I
was
of
the
opinion
in
Weber
v.
Pawlik,
[1952]
C.T.C.
32,
that
on
grounds
of
public
policy
the
production
of
income
tax
returns
and
other
papers
in
connection
therewith
might
be
refused
by
the
Minister
of
National
Revenue.
and
that
an
official
of
the
Income
Tax
Department,
if
proper
objection
were
taken,
could
not
be
forced
to
give
evidence
with
regard
to
income
tax
returns,
as
this
would
interfere
with
the
proper
and
effective
operation
of
the
Income
Tax
Acts.
My
judgment
was
based
upon
the
unanimous
decision
of
the
House
of
Lords
in
Duncan
v.
Cammell,
Laird
&
Co.,
[1942]
A.C.
624,
a
case
to
a
great
extent
relied
upon
by
counsel
for
the
Minister
of
National
Revenue.
He
submitted
that
it
was
for
the
Minister
of
National
Revenue
to
decide
whether
or
not
the
production
of
such
returns
and
the
giving
of
evidence
in
rela-
tion
thereto
was
prejudicial
to
the
public
interest;
"‘that
the
Courts
could
not
make
any
enquiry
as
to
his
reasons;
and
must
accept
his
decision
as
final’’.
As
to
this
Viscount
Simon,
L.C.,
in
his
speech
in
Duncan’s
case,
said
at
p.
633,
that
the
judgment
in
that
case
was
limited
to
civil
actions
and
practice,
‘‘as
applied
in
criminal
trials
where
an
individual’s
life
or
liberty
may
be
at
stake,
is
not
necessarily
the
same’’.
He
then
referred
to
what
Eyre,
C.J.,
said
in
À.
v.
Hardy
(1794),
24
St.
Tr.
199:
°°
‘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.’
”
He
further
said:
‘‘A
statement
to
much
the
same
effect
was
made
by
Abbott,
J.,
and
confirmed
by
Lord
Ellenborough,
C.J.,
in
À.
v.
Watson
(1817),
32
St.
Tr.
1
at
p.
101.”
This
rule
is
based
on
public
policy.
In
Home
v.
Bentinck
(1820),
2
Brod.
&
Bing.
130
at
p.
162,
129
E.R.
907,
Dallas,
C.J.,
said:
“It
is
agreed,
that
there
are
a
number
of
cases
of
a
particular
description,
in
which,
for
reasons
of
state
and
policy,
information
is
not
permitted
to
be
disclosed.
To
begin
with
the
ordinary
cases,
and
those
of
a
common
description
in
courts
of
justice.
In
these
courts,
for
reasons
of
public
policy,
persons
are
not
to
be
asked
the
names
of
those
from
whom
they
receive
information
as
to
the
frauds
on
the
revenue.
’
’
See
also
Attorney-General
v.
Briant
(1846),
15
M.
&
W.
169,
153
E.R.
808.
The
rule
as
stated
in
R,
v.
Hardy
that
where
it
was
necessary
to
investigate
of
the
truth
of
a
case
the
name
of
the
persons
should
be
disclosed,
was
followed
in
the
case
of
Reg.
v.
Richardson
(1863),
3
F.
&
F.
693,
176
E.R.
318.
The
reason
for
the
exception
to
the
rule
is
stated
by
Lord
Esher,
M.R.,
in
Marks
v.
Bey
fus
(1890),
59
L.J.Q.B.
479
at
p.
482.
After
referring
to
the
rule
that
in
a
public
prosecution
a
witness
could
not
be
asked
such
questions
as
would
disclose
the
informer
if
he
be
a
third
person,
and
stating
that
such
rule
was
laid
down
on
‘he
grounds
of
public
policy,
Lord
Esher
said
at
p.
482:
“I
do
not,
however,
say
that
the
rule
never
can
be
departed
from.
If
a
prisoner
were
being
tried,
and
the
Judge
was
of
opinion
that
the
disclosure
of
the
name
of
the
informer
was
necessary
or
right
in
order
to
shew
that
the
prisoner
was
innocent,
the
Judge,
in
such
a
case,
would
probably
order
the
name
to
be
disclosed.
It
is
a
matter
of
public
policy
that
an
innocent
person
should
not
be
convicted,
and
that
public
policy
prevails
as
against
the
other
public
policy.’’
(My
italics.)
Lindley
and
Bowen,
L.JJ.,
agreed.
Humphrey
v.
Archibald
(1893),
20
O.A.R.
267,
was
an
action
for
malicious
prosecution
against
a
police
officer
arising
out
of
a
public
prosecution
initiated
upon
an
information
sworn
by
him.
Burton,
J.A.,
at
p.
270,
after
stating
the
above
rule
with
regard
to
public
policy,
said:
"The
only
exception
to
that
rule
which
I
can
find,
is
that
if
upon
the
trial
of
the
prisoner
the
Judge
should
be
of
opinion
that
the
disclosure
of
the
name
of
the
informant
is
necessary
in
order
to
shew
the
prisoner’s
innocence,
then
one
public
policy
is
in
conflict
with
another
public
policy,
and
that
which
says
that
an
innocent
man
is
not
to
be
condemned
when
his
innocence
can
be
proved
is
the
policy
which
must
prevail.
But
except
in
that
case
this
rule
of
public
policy
is
not
a
matter
of
discretion.”
(My
italics.)
The
result
of
these
decisions
in
my
opinion
is
to
hold
that
where
two
public
policies
are
in
conflict,
that
which
is
paramount
must
prevail.
The
public
policy
relied
upon
by
the
Minister
of
National
Revenue
has
only
to
do
with
the
collection
of
revenue,
while
the
other
public
policy,
viz.,
that
an
innocent
person
should
not
be
convicted,
vitally
affects
the
liberty
of
the
subject,
and
therefore
in
my
opinion
there
can
be
no
question
that
it
is
paramount.
In
my
opinion
the
same
principle
should
apply
to
returns
and
information
supplied
under
the
above-mentioned
Acts,
and
to
officials
called
to
give
evidence,
subject
to
the
limitations
hereafter
expressed
—
where
such
returns
and
information
are
necessary
in
criminal
proceedings
to
the
defence
of
an
accused
person.
The
Attorney-General
for
the
Province
submits
that
such
returns,
information
and
evidence
should
be
available
to
the
Crown
in
criminal
prosecutions;
that
it
is
his
duty
to
enforce
the
criminal
laws,
and
that
he
should
be
afforded
every
reasonable
assistance
in
so
doing.
It
is
a
matter
of
public
policy
that
a
guilty
person
charged
with
a
crime
should
not
escape.
In
Stephen’s
Commentaries
on
the
Laws
of
England,
17th
ed.,
vol.
IV,
p.
2
(a
text-book
of
authority—Mohamidu
Mohideen
Hadjiar
v.
Pitchey,
[1894]
A.C.
437
at
p.
443)
it
is
stated:
‘‘The
punishment
of
crimes
is
a
matter
which
is
of
the
utmost
importance
to
every
individual
in
the
State.’’
An
accused
person’s
guilt
might
be
made
perfectly
clear
by
an
income
tax
return
or
by
papers
filed
in
connection
therewith.
In
my
opinion,
in
such
a
case
the
rule
of
public
policy
I
have
just
stated
would
be
paramount
and
should
prevail
against
the
objection
of
the
Minister
of
National
Revenue.
While
the
returns
and
documents
should
be
produced
in
Court,
the
learned
trial
Judge
may
examine
them
privately
to
see
if
in
fact
their
production
would
be
injurious
to
the
public
interest.
This
course
was
referred
to
by
Viscount
Simon
in
Duncan’s
case,
[1942]
A.C.
at
pp.
638-9.
He
cited
Asiatic
Petroleum
Co.
v.
Anglo-Persian
Oil
Co.,
[1916]
1
K.B.
822
at
p.
826,
and
Spigelmann
v.
Hocker
(1932),
50
T.L.R.
87,
in
which
Serutton,
J.,
and
Macnaghten,
J.,
respectively
adopted
this
course.
See
also
the
citations
from
Marks
v.
Beyfus
and
Humphrey
v.
Archibald,
supra.
In
Robinson
v.
State
of
South
Australia,
[1931]
A.C.
704,
where
objection
had
been
taken
to
the
disclosure
of
certain
documents
on
the
ground
that
it
would
be
contrary
to
the
interests
of
the
state
and
the
public,
the
Privy
Council
held
that
the
objection
had
not
been
adequately
taken,
and
remitted
the
case
to
the
Supreme
Court
of
Australia,
with
a
direction
that
it
was
one
proper
for
the
exercise
of
the
Court’s
power
of
inspecting
the
documents
for
which
privilege
was
claimed
in
order
to
determine
whether
the
facts
discoverable
by
their
production
would
be
prejudicial
or
detrimental
to
the
public
welfare
in
any
justifiable
sense.
With
reference
to
the
third
question—I
see
nothing
in
these
sections
which
prohibits
the
Minister
of
National
Revenue
on
grounds
of
public
policy
from
taking
objection
to
the
production
of
documents
or
to
the
examination
of
an
official
under
Section
81
of
the
Income
War
Tax
Act,
or
Section
121
of
the
Income
Tax
Act.
Ship
v.
The
King
(1949),
95
Can.
C.C.
148,
supports
this
view.
It
is
to
be
noted,
however,
that
no
objection
was
taken
to
the
production
of
the
returns.
The
accused
was
charged
with
keeping
a
common
gaming-
house,
and
it
was
necessary
for
the
Court
to
consider
Section
81
above
referred
to.
They
held
that
the
accused’s
income
tax
returns
were
admissible.
Barclay,
J.,
with
whom
the
other
learned
members
of
the
Court
agreed,
said
at
p.
155:
"‘The
secrecy
pertains
to
the
administrative
field
only.
It
would
be
a
curious
position
to
take
that
when
the
Crown
obtains
knowledge
through
returns
of
the
commission
of
some
crime
not
connected
with
the
Act,
it
should
be
pro-
hibited
from
using
that
information
against
the
perpetrator
of
the
crime.
I
am
of
the
opinion
that
when
evidence
contained
in
the
tax
return
is
pertinent
as
evidence
on
any
criminal
charge,
the
Magistrate
before
whom
that
charge
is
being
tried,
is
a
person
legally
entitled
to
the
information.’
SIDNEY
SMITH,
J.A.
(dissenting
in
part)
:—We
are
asked
to
advise
on
the
power
of
Criminal
Courts,
these
being
provincial
Courts,
to
compel
the
production
of
income
tax
returns
on
the
trial
of
an
indictable
offence,
over
the
objection
of
the
Minister
of
National
Revenue.
We
are
asked
to
deal
with
subpoenas
obtained
(a)
by
a
provincial
Attorney-General,
(b)
by
the
accused.
It
is
no
secret
that
the
occasion
of
this
Reference
is
the
ruling
of
Whittaker,
J.,
in
Reg.
v.
Snider,
[1952]
C.T.C.
64,
holding
that
a
subpoena
at
the
instance
of
the
local
Attorney-
General
to
the
Income
Tax
Inspector
to
produce
tax
returns
was
effective,
even
over
the
Minister’s
objections.
However,
the
Reference
to
us
raises
its
questions
in
wholly
abstract
form.
In
Weber
v.
Pawlik,
[1952]
C.T.C.
32,
this
Court
held
by
a
majority,
sustaining
Farris,
C.J.S.C.,
in
the
Supreme
Court,
and
following
the
House
of
Lords
decision
in
Duncan
v.
Cammell
Laird
c
Co.,
[1942]
1
All
E.R.
587,
that
when
the
Minister
of
National
Revenue
objects
under
oath
to
the
production
of
income
tax
returns
upon
the
ground
that
their
disclosure
would
not
be
in
the
public
interest,
then
the
Court
would
not
go
behind
this
statement.
Such
is
undoubtedly
the
rule
in
civil
cases
and
the
crucial
issue
before
us
now
is
whether
the
same
rule
applies
on
the
trial
of
a
person
charged
with
an
indictable
offence.
In
other
words,
whether
it
is
the
responsible
Minister
who
is
head
of
the
Department
concerned,
or
the
Judge
at
the
trial,
on
whom
falls
the
responsibility
of
deciding
whether
the
production
asked
for
is,
or
is
not,
in
the
public
interest?
On
the
Reference,
however,
we
were
asked
to
hold
that
Weber
v.
Pawhk,
[1952]
2
D.L.R.
750,
was
wrongly
decided,
and
I
may
say
that
I
would
very
willingly
change
the
whole
of
my
opinion
there
if
I
could
see
adequate
grounds
for
doing
so.
It
is
satisfactory
to
know
that
our
ruling
created
no
hardship
in
that
case,
for
we
were
advised
by
counsel
that
the
documents
were
produced
from
some
other
source,
that
the
case
went
to
trial
before
the
Chief
Justice
and
was
dismissed.
I
have
considered
the
possible
application
of
such
cases
as
Attorney-General
v.
De
Keyser’s
Royal
Hotel
Ltd.,
[1920]
A.C.
008,
which
lay
down
that
where
a
prerogative
is
paralleled
by
express
legislation,
then
the
result
may
be
that
the
prerogative
is
"merged’’,
"‘superseded’’
or
"‘suspended’’.
If
the
statutory
power
is
parallel
but
narrower
than
the
prerogative,
then
the
prerogative
is
restricted
pro
tanto,
otherwise
the
statute
would
be
purposeless.
Here,
however,
I
have
concluded
that
our
sections
do
not
admit
of
the
application
of
that
principle.
Neither
Section
81
of
the
Income
War
Tax
Act,
nor
Section
121
of
the
Income
Tax
Act
purports
to
deal
with
the
Crown’s
rights
or
powers
at
all.
Both
simply
deal
with
the
duties
of
the
Crown’s
employees,
and
they
indicate
no
attempt
to
regulate
all
their
duties.
The
sections
simply
say
that
certain
acts
by
employees
shall
be
criminal
offences,
even
without
any
special
orders
from
superiors
having
been
disobeyed;
but
I
find
no
suggestion
that
this
exhausts
all
the
duties
of
the
employees
of
the
Crown
as
their
employer.
Besides
dealing
with
their
duties
to
the
Crown,
the
sections
may
well
create
a
duty
to
taxpayers
too.
I
do
not
think
they
touch
the
powers
of
the
Crown;
and
they
cannot
abridge
the
prerogative
if
they
are
not
in
pari
materia.
I
think
it
is
implicit
in
Snell
v.
Haywood,
[1947]
C.T.C.
406,
88
Can.
C.C.
213,
which
is
the
most
authoritative
decision
in
point,
that
the
statutory
sections
have
no
application
to
production
of
returns
in
Court.
In
other
words,
Courts
and
Magistrates
are
persons
legally
entitled
to
see
the
returns
unless
the
Minister
objects
to
production.
I
think
the
sections
were
not
aimed
at
Court
proceedings
at
all.
However,
equally,
I
think
that
the
sections
leave
the
Minister’s
common
law
right
to
object
untouched,
whatever
the
scope
of
that
right
may
be.
Except
for
the
ruling
of
Whittaker,
J.,
in
Reg.
v.
Snider,
supra,
I
know
of
no
authority
for
saying
that
the
Minister’s
objection
to
production
of
tax
returns
is
any
less
effective
in
criminal
eases
than
in
civil
cases.
The
only
authority
cited
by
Whittaker,
J.,
to
support
his
ruling
is
Ship
v.
The
King,
95
Can.
C.C.
143,
but
in
that
case
the
Minister
raised
no
objections,
so
that
the
only
possible
obstacle
was
the
Income
War
Tax
Act
which
was
held
not
to
apply.
With
deference,
the
decision
seems
to
have
no
relevance
here.
Because
of
lack
of
objection
by
the
Minister
in
À.
ex
rel.
Haywood
v.
Neff,
[1947]
C.T.C.
392,
and
Snell
v.
Haywood,
supra,
those
decisions
seem
to
me,
with
respect,
equally
irrelevant.
Counsel
for
the
Province
naturally
relied
strongly
on
the
fact
that
in
Duncan
v.
Cammell,
Laird
c
Co.,
supra,
which
was
the
strongest
authority
for
the
conclusiveness
of
the
Minister’s
objections,
Viscount
Simon
at
p.
591
reserved
the
question
whether
the
same
principle
would
govern
in
a
criminal
case.
However,
Lord
Simon
suggested
no
ground
for
distinction,
and
no
distinction
has
been
suggested
to
us,
except
perhaps
that
greater
injustice
might
be
done
by
such
objections
in
a
criminal
case.
This
consideration
I
do
not
find
helpful
for,
conversely,
it
might
easily
be
that
the
offence
in
question
only
involved
a
fine
of
a
trifling
sum
compared
with,
say,
the
amounts
involved
in
a
civil
action
for
fraud.
The
questions
herein
concern
income
tax
documents;
but,
of
course,
the
principle
extends
to
all
documents
held
by
any
Department
of
state,
when
the
head
of
the
Department
in
whose
custody
they
are,
objects
to
their
production.
As
Viscount
Simon
points
out
in
the
Cammell
Laird
case,
[1942]
1
All
E.R.
at
p.
595
:
"‘The
Minister
ought
not
to
take
the
responsibility
of
withholding
production
except
in
cases
where
the
public
interest
would
otherwise
be
damnified,
e.g.,
where
disclosure
would
be
injurious
to
national
defence,
or
to
good
diplomatic
relations,
or
where
the
practice
of
keeping
a
class
of
documents
secret
is
necessary
for
the
proper
functioning
of
the
public
service.
"‘When
these
conditions
are
satisfied
and
the
Minister
feels
it
is
his
duty
to
deny
access
to
material
which
would
otherwise
be
available,
there
is
no
question
but
that
the
public
interest
must
be
preferred
to
any
private
consideration.’’
Perhaps
I
should
say
that
cases
such
as
Marks
v.
Beyfus
(1890),
25
Q.B.D.
494,
dealing
with
the
rule
as
to
the
disclosure
of
the
names
of
informants
in
public
prosecutions
do
not
appear
to
me
to
be
authority
for
production
of
documents
in
a
criminal
case.
For
there
the
objection
was
not
taken
by
the
responsible
Minister,
no
documents
were
involved,
and
the
public
policy
in
question
was
one
in
a
limited
sense
only
and
not
falling
within
any
of
the
categories
mentioned
in
the
Cammell
Laird
ease.
If
it
had
been
practical,
I
might
have
felt
inclined
to
support
a
distinction
between
true
state
documents
and
documents,
like
tax
returns,
in
which
the
state
merely
has
an
interest;
that
is,
a
distinction
as
to
the
conclusiveness
of
objections
to
production.
But
I
feel
that
the
weight
of
authority
is
too
strongly
in
favour
of
conclusiveness
to
be
challenged
while
we
recognize
the
principle
of
stare
decisis,
as
our
system
of
law
requires.
Authority
for
conclusiveness
not
only
includes
the
House
of
Lords
decision
in
Duncan
v.
Cammell
Laird,
supra,
but
also
a
number
of
other
English
cases
cited
by
my
brother
Robertson
in
Weber
v.
Pawhk,
supra.
To
these
I
may
add
Bradley
v.
McIntosh
(1884),
5
O.R.
227,
and
Latter
v.
Goolden
(November
10,
1894)
an
unreported
decision
of
the
English
Court
of
Appeal
cited
in
Taylor
on
Evidence,
12th
ed.,
vol.
1,
p.
600.
There
is,
so
far
as
I
can
ascertain,
hardly
a
dissenting
authority,
except
McDougall
v.
Dom.
Iron
c
Steel
Co.
(1902),
40
N.S.R.
333,
which
the
report
shows
to
have
been
very
inadequately
argued.
I
do
not
regard
Robinson
v.
State
of
South
Australia,
[1931]
A.C.
704,
as
being
necessarily
in
conflict
with
the
English
decisions,
for
there
the
Crown
was
a
litigant,
and
a
special
statute
gave
the
same
rights
of
discovery
against
the
Crown
as
against
a
subject.
Even
if
this
statute
did
not
take
away
the
right
to
resist
discovery
of
particular
documents
that
affected
state
interests,
still
it
could
reasonably
be
held
to
throw
on
the
Crown
the
onus
of
showing,
and
not
merely
asserting,
that
documents
fell
within
an
implied
exception
to
the
statute.
But
here
we
are
advising
on
the
common
law.
In
conceding
conclusiveness
for
the
Crown’s
claims
that
particular
documents
affect
the
public
interest,
I
am
aware
that
this
ruling
may
be
regarded
as
leaving
a
door
open
to
abuses.
Indeed
it
was
so
argued
before
us.
But
Mr.
Owen,
counsel
for
the
Minister
of
National
Revenue,
submitted
that
Ministers
would
not
be
unfaithful
to
their
trust
in
this
regard
;
and
that,
for
example,
they
would
not
allow
documents
tending
to
show
an
accused
person
innocent
of
a
crime
to
remain
in
their
Department
unproduced
;
and
that
we
should
not
now,
lacking
authority,
give
an
abstract
ruling
contrary
to
the
principle
that
governs
in
civil
cases.
With
this
I
agree.
I
see
no
escape
from
holding
that
to
treat
a
Minister’s
claim
of
public
interest
as
conclusive
is
the
only
practical
course
with
regard
to
documents
held
by
the
Crown
whether
the
case
be
civil
or
criminal.
In
neither
the
one
nor
the
other,
in
my
respectful
opinion,
can
the
plain
overruling
principle
of
public
interest
be
disregarded.
I
find
the
principle
nowhere
better
expressed
than
in
Bradley
v.
McIntosh,
5
O.R.
at
p.
232-3
(Wilson,
C.J.,
and
Galt,
J.),
as
follows:
44
Whether
the
communication
is
a
proper
one
in
spirit,
purpose,
or
language,
cannot
be
known
without
the
production
of
the
document,
and
if
the
officer
at
the
head
of
one
of
the
High
Government
departments
declines
to
produce
it
because
it
will
not,
in
his
opinion,
be
conducive
to
the
public
interest
to
do
so,
his
judgment
is
conclusive.
He
surely
can
determine
better
than,
or
at
least
quite
as
well
as,
the
Judge
at
the
trial
what
is
or
what
is
not
for
the
public
interest.
It
is
not
to
be
presumed
he
will
abuse
his
high
office.
It
must
therefore
be
presumed
he
is
speaking
conscientiously
in
the
interest
of
the
public,
and
not
unadvisedly
to
protect
an
offender
nor
capriciously
to
defeat
justice.”
So
much
for
the
Crown’s
preventing
production
of
its
documents.
However,
we
are
also
asked
to
advise
on
the
Minister’s
right
to
prevent
income
tax
officials
from
giving
evidence
“relating
to
returns’’.
In
Weber
v.
Pawlik,
supra,
I
held
the
same
rules
that
governed
the
production
of
documents
governed
the
giving
of
oral
evidence
of
their
contents,
and
I
see
no
reason
to
change
that
view.
Such
evidence
is
merely
indirect
proof
of
the
document.
But
it
may
be
that
quite
different
considerations
can
arise
as
to
evidence
“relating
to
returns’’,
and
the
facts
in
Weber
v.
Pawlik
bring
them
well
out.
There
an
official
named
Green
from
the
income
tax
office
was
subpoenaed
by
the
plaintiff
to
produce
returns
filed
by
the
Department;
but
the
plaintiff
also
sought
to
elicit
from
Mr.
Green
that
the
defendant
had
in
effect
admited
to
him
in
his
office
that
the
returns
made
were
false,
and
had
submitted
to
being
taxed
on
a
larger
income
than
was
returned.
Primarily,
the
plaintiff
wanted
to
bring
out
this
new
figure
rather
than
that
in
the
returns.
The
Minister
by
affidavit
filed,
objected
not
only
to
production
of
the
returns,
but
also
to
Mr.
Green’s
giving
any
evidence
relating
to
them.
This
is
a
very
neat
point,
and
I
am
not
prepared
to
say,
at
least
on
this
Reference,
that
although
evidence
of
the
contents
of
returns
is
barred,
evidence
‘‘relating
to
returns’’
may
be
given
despite
the
Minister’s
objection.
It
seems
to
me
that
this
would
derogate
unduly
from
the
principle
of
conclusiveness
which,
with
deference
to
other
views,
I
think
prevails.
I
would.
therefore
answer
the
submitted
questions
as
follows
:
Q.
1(a):
“No.”
Q.
1(b):
“No.”
Q.
2:
“The
documents
in
question
are
in
the
possession
of
the
Crown.”
Q.
3:
“No.”
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