Décary,
J.A.
(Mahoney
and
MacGuigan,
JJ.A.
concurring):—The
applicant
appealed
to
the
Tax
Court
of
Canada
from
a
reassessment
of
his
liability
to
tax
made
by
the
respondent.
Prior
to
the
hearing
of
the
appeal,
counsel
for
the
applicant
made
an
application
under
section
16
of
the
Tax
Court
of
Canada
Act!
for
an
order
that
the
hearing
be
held
in
camera.
The
application
for
an
in
camera
hearing
was
based
on
the
fact
that
the
applicant,
a
member
of
a
professional
body,
was
fearful
that
his
conduct,
which
would
be
revealed
through
the
tax
proceedings,
might
subject
him
to
disciplin-
fears
were
well-founded,
he
was
told
that
if
the
tax
case
were
to
be
publicized,
a
complaint
was
likely
to
be
filed
against
him
by
a
fellow
member,
he
would
likely
be
brought
before
a
disciplinary
board
and
he
might
be
subject
to
disciplinary
proceedings.
The
applicant
testified
that
until
that
conversation,
his
intention
was
to
proceed
with
his
appeal
from
the
reassessment,
but
that
as
a
result
of
the
conversation,
he
”
probably
won't
proceed"
with
the
appeal
if
it
is
not
heard
in
camera.
The
Associate
Chief
Justice
of
the
Tax
Court
dismissed
the
application
for
an
in
camera
hearing
and
the
applicant
thereafter
filed
this
section
28
application,
which
was
ordered
by
this
Court
to
be
held
in
camera.
Counsel
for
the
applicant
relied
heavily
on
the
following
statement
by
Earl
Loreburn
in
Scott
v.
Scott,
[1913]
A.C.
417
at
446
(H.L.):
It
would
be
impossible
to
enumerate
or
anticipate
all
possible
contingencies,
but
in
all
cases
where
the
public
has
been
excluded
with
admitted
propriety
the
underlying
principle,
as
it
seems
to
me,
is
that
the
administration
of
justice
would
be
rendered
impracticable
by
their
presence,
whether
because
the
case
could
not
be
effectively
tried,
or
the
parties
entitled
to
justice
would
be
reasonably
deterred
from
seeking
it
at
the
hands
of
the
Court.
[Emphasis
added.]
In
counsel's
view,
that
statement
was
adopted
by
a
majority
of
the
law
lords
in
that
case
and
introduced
into
Canadian
jurisprudence
by
the
decision
of
Mr.
Justice
Dickson,
later
Chief
Justice,
in
A.-G.
(Nova
Scotia)
v.
MacIntyre,
[1982]
1
S.C.R.
175;
132
D.L.R.
(3d)
385.
Counsel
argued,
basically,
that
the
applicant
had
a
fear
of
adverse
consequences
from
testifying
in
open
court,
that
he
was
deterred
from
seeking
justice
in
the
Tax
Court
if
the
proceedings
were
in
public
and
that
the
test
set
out
by
Earl
Loreburn
applied
to
his
case.
With
respect,
I
am
unable
to
agree
with
the
interpretation
given
by
counsel
to
that
test
nor
with
his
submission
that
Earl
Loreburn's
statement
was
approved
by
his
colleagues
and
became
part
of
our
jurisprudence
through
the
MacIntyre
decision,
supra.
That
test
was
formulated
by
Earl
Loreburn
in
a
very
specific
context,
i.e.,
“when
the
subject-matter
of
the
action
would
be
destroyed
by
a
hearing
in
open
Court,
as
in
a
case
of
some
secret
process
of
manufacture,"
and
when
"There
would
be
in
effect
a
denial
of
justice”
(at
445)
in
the
particular
action.
Where
secrecy
or
confidentiality
of
information
is
precisely
what
is
at
issue
in
a
proceeding,
the
party
seeking
to
protect
that
information
would
most
certainly
be
deterred
from
seeking
justice
in
the
hands
of
the
Court
if
"the
secret
was
to
be
communicated
to
all
the
world”
(at
445).
In
the
case
at
bar,
the
applicant
is
deterred
from
seeking
justice
not
because
the
actual
proceedings
in
the
Tax
Court
which
he
wants
to
have
heard
in
camera
would
be
frustrated
if
they
were
held
in
open
court,
but
because
some
other
hypothetical
proceedings
in
another
tribunal
might
take
place.
This
is
not,
I
suggest,
what
Earl
Loreburn
had
in
mind.
Even
if
this
was
what
Earl
Loreburn
had
in
mind,
a
close
reading
of
the
opinions
of
the
five
law
lords
who
sat
in
Scott,
supra,
reveals
that
the
extent
of
the
consensus
was
much
narrower
and
can
be
reduced
to
two
propositions.
The
first
one
is
that
the
broad
principle
that
the
courts
must
administer
justice
in
public
is
“one
of
the
surest
guarantees
of
our
liberties"
and
“the
very
foundations
of
public
and
private
security."
The
second
one
is
that
this
broad
principle
is
"subject
to
apparent
exceptions"
which
are
themselves
"the
outcome
of
a
yet
more
fundamental
principle
that
the
chief
object
of
Courts
of
justice
must
be
to
secure
that
justice
is
done."
These
“narrowly
defined
exceptions”
.
.
.
"which
are
acknowledged
to
the
application
of
the
rule
prescribing
the
publicity
of
Courts
of
justice
are,
first,
in
suits
affecting
wards;
secondly,
in
lunacy
proceedings;
and,
thirdly,
in
those
cases
where
secrecy,
as,
for
instance,
the
secrecy
of
a
process
of
manufacture
or
discovery
or
invention—trade
secrets—is
of
the
essence
of
the
cause.
.
.
The
third
case—
that
of
secret
processes,
inventions,
documents,
or
the
like—depends
upon
this:
that
the
rights
of
the
subject
are
bound
up
with
the
preservation
of
the
secret.
To
divulge
that
to
the
world,
under
the
excuse
of
a
report
of
proceedings
in
a
Court
of
law,
would
be
to
destroy
that
very
protection
which
the
subject
seeks
at
the
Court's
hands."
It
is
true,
as
Earl
Loreburn
points
out,
that
"it
would
be
impossible
to
enumerate
or
anticipate
all
possible
contingencies",
but
any
extension
of
the
recognized
exceptions
beyond
the
narrow
scope
given
to
them
by
Viscount
Haldane,
by
the
Lord
of
Halsbury
and
by
Lord
Shaw
of
Dunfermline
would
need
to
be
done
with
extreme
care
and
in
most
unique
circumstances.
In
any
event,
it
is
somewhat
futile
to
speculate
as
to
the
proper
reading
of
the
view
of
the
law
lords
in
Scott,
supra,
because,
in
my
opinion,
they
were
incorporated
into
Canadian
law
only
to
the
extent
that
they
were
adopted
by
Dickson,
J.,
later
Chief
Justice,
in
Maclntyre,
supra,
which
is
as
follows
(at
pages
185-87
(D.L.R.
401-403)):
It
is
now
well
established.
.
.
that
covertness
is
the
exception
and
openness
the
rule.
Public
confidence
in
the
integrity
of
the
court
system
and
understanding
of
the
administration
of
justice
are
thereby
fostered.
As
a
general
rule
the
sensibilities
of
the
individuals
involved
are
no
basis
for
exclusion
of
the
public
from
judicial
proceedings.
.
.
The
authorities
have
held
that
subject
to
a
few
well-recognized
exceptions,
as
in
the
case
of
infants,
mentally
disordered
persons
or
secret
processes,
all
judicial
proceedings
must
be
held
in
public.
.
.
In
my
view,
curtailment
of
public
accessibility
can
only
be
justified
where
there
is
present
the
need
to
protect
social
values
of
superordinate
importance.
.
..
A
recent
illustration
of
a
unique
circumstance
that
justified
a
widening
of
the
"classes"
indicated
in
Scott,
supra,
is
found
in
R.
v.
A.,
[1990]
1
S.C.R.
992,
where
the
Supreme
Court
of
Canada
ordered
that
proceedings
before
it
be
held
in
camera
on
the
basis
that
disclosure
posed
a
serious
risk
to
the
safety
of
a
person
and
to
members
of
his
family,
when
that
person
was
under
the
protection
of
the
R.C.M.P.
and
subpoenaed
to
testify
in
a
criminal
trial.
In
reading
Scott,
supra,
and
Maclntyre,
supra,
we
should
keep
in
mind
(a)
that
in
neither
case
was
there
a
statutory
authority
given
to
the
courts
to
order
hearings
in
camera
and
(b)
most
importantly,
that
Charter
considerations
did
not
come
into
play.
One
could
argue
that
common
law
exceptions
have
lost
some
of
their
rigidity
with
the
advent
of
numerous
statutory
exceptions
through
which
Parliament
has
expressly
indicated
to
the
courts
that,
with
respect
to
a
given
situation,
the
principle
of
openness
could
be
dispensed
with.
One
could
argue,
to
the
contrary,
that
statutory
provisions
have
generally
been
made
to
confirm
cases
which
would
otherwise
benefit
from
the
common
law
exceptions.
There
is
no
need,
however,
to
choose
between
these
two
approaches
for,
with
the
advent
of
the
Charter
and
more
specifically
with
the
recognition
in
its
paragraph
2(b)
of
the
freedom
of
the
press,
openness
of
the
courts
became
an
even
better
recognized
and
protected
principle
than
it
was
at
common
law.
As
Cory,
J.
stated
in
Edmonton
Journal
v.
Alberta
(A.-G.),
[1989]
2
S.C.R.
1326
at
1336;
64
D.L.R.
(4th)
577
at
607:
“It
seems
that
the
rights
enshrined
in
s.
2(b)
should
therefore
only
be
restricted
in
the
clearest
of
circumstances."
Therefore,
a
statutory
provision
permitting
in
camera
proceedings
will
only
be
constitutionally
valid
in
the
clearest
of
circumstances",
which
may
well
be,
to
use
the
words
of
Dickson,
J.
in
MacIntyre,
supra,
"where
there
is
present
the
need
to
protect
social
values
of
supero
rd
inate
importance."
In
that
sense
I
would
say
that
the
Charter
has
reinstated
the
principle
of
openness
in
its
original
dimension,
if
that
principle
had
at
all
been
diluted
through
statutory
exceptions.
In
the
case
at
bar,
the
applicant's
fear
of
adverse
consequences
on
his
career
should
the
Tax
Court
proceedings
be
conducted
in
public
cannot,
by
any
stretch
of
the
imagination,
be
one
of
these
“
clearest
of
circumstances”
which
would
justify
a
departure
from
the
broad
principle
of
openness
of
our
court
system.
The
public
interest
right
which
the
applicant
is
seeking
to
put
in
the
balance
against
the
public
interest
right
of
openness,
is
that
of
the
need
not
to
deter
taxpayers
from
making
honest
self-assessment
of
their
income
tax
by
subjecting
them
to
adverse
consequences.
Had
that
public
interest
right
been
a
"value
of
superordinate
importance"
that
called
for
hearings
in
camera,
Parliament
would
have
made
such
hearings
the
rule
rather
than
the
exception
in
section
16
of
the
Act.
It
is
true
that
section
241
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
(the"Act")
recognizes
that
confidentiality
is
necessary
for
the
proper
and
effective
administration
of
the
Income
Tax
Act,
but
I
am
not
prepared
to
consider
confidentiality
for
the
purposes
of
the
Income
Tax
Act
as
one
of
the
circumstances
that
would,
under
section
16
of
the
Tax
Court
of
Canada
Act,“
"justify
in
camera
proceedings".
To
allow
someone
to
seek
justice
in
camera
for
the
sole
purpose
of
hiding
from
a
professional
body
a
conduct
which
might
lead
to
disciplinary
proceedings,
would
be
doing
precisely
what
Lord
Shaw
of
Dunfermline,
in
Scott,
supra,
at
pages
484-85,
warned
the
courts
against:
There
remains
this
point.
Granted
that
the
principle
of
openness
of
justice
may
yield
to
compulsory
secrecy
in
cases
involving
patrimonial
interest
and
property,
such
as
those
affecting
trade
secrets,
or
confidential
documents,
may
not
the
fear
of
giving
evidence
in
public,
on
questions
of
status
like
the
present,
deter
witnesses
of
delicate
feeling
from
giving
testimony,
and
rather
induce
the
abandonment
of
their
just
right
by
sensitive
suitors?
And
may
not
that
be
a
sound
reason
for
administering
justice
in
such
cases
with
closed
doors?
For
otherwise
justice,
it
is
argued,
would
thus
be
in
some
cases
defeated.
My
Lords,
this
ground
is
very
dangerous
ground.
One's
experience
shews
that
the
reluctance
to
intrude
one’s
private
affairs
upon
public
notice
induces
many
citizens
to
forgo
their
just
claims.
It
is
no
doubt
true
that
many
of
such
cases
might
have
been
brought
before
tribunals
if
only
the
tribunals
were
secret.
But
the
concession
to
these
feelings
would,
in
my
opinion,
tend
to
bring
about
those
very
dangers
to
liberty
in
general,
and
to
society
at
large,
against
which
publicity
tends
to
keep
us
secure.
.
.10
Moreover,
to
interpret
section
16
in
such
a
way
as
that
suggested
by
the
applicant
might
well
allow
for
an
unwarranted
departure
from
the
rules
set
up
by
sections
3
and
5
of
the
Canada
Evidence
Act,
1985,
R.S.C.
c.
C-5
and
by
section
13
of
the
Charter.
Perhaps,
and
I
do
not
want
to
be
seen
as
expressing
any
view
on
this
issue,
the
applicant,
if
he
were
to
testify
before
the
Tax
Court,
might
later
avail
himself
before
the
disciplinary
tribunal
of
the
protection
against
incriminating
evidence
afforded
by
section
5
of
the
Canada
Evidence
Act
and
by
section
13
of
the
Charter;
but
even
if
that
were
so,
neither
the
Charter
nor
the
Canada
Evidence
Act
would
afford
him
any
protection
against
the
publicity
of
the
hearing
before
the
Tax
Court.
With
respect
to
evidence
that
might
lead
to
criminal
proceedings,
the
protection
given
would
be
that
against
its
use,
and
not
that
against
its
publicity,
but
with
respect
to
eventual
disciplinary
proceedings
the
protection
would
be
against
the
use
of
the
evidence
as
well
as
against
its
publicity:
this
is
an
untenable
position.
To
permit
an
in
camera
hearing
in
the
Tax
Court
for
fear
of
possible
disciplinary
measures
would
be
tantamount
to
affording
the
applicant
a
protection
not
even
afforded
by
the
Charter
to
witnesses
fearing
criminal
proceedings.
To
use
the
words
of
the
Associate
Chief
Justice
of
the
Tax
Court,
“1
know
of
no
case,
and
(counsel
for
the
applicant)
could
find
none,
that
on
its
facts
suggests
that
apprehension
on
the
part
of
an
appellant
that
he
might
be
the
subject
of
disciplinary
proceedings
for
a
breach
or
the
rules
of
the
professional
body
to
which
he
belongs
is
a
proper
ground
for
ordering
an
in
camera
hearing
in
a
court
of
law."
There
being
no
error
of
law
and
the
Associate
Chief
Justice
having
judicially
exercised
his
discretion
on
the
facts
of
the
case,
I
would
dismiss
the
application,
with
the
proviso
that
the
in
camera
order
granted
with
respect
to
the
proceedings
in
this
Court
be
continued
and
that
these
reasons
be
made
public
with
the
letters
"C.D"
being
used
to
identify
the
applicant.
Application
dismissed.