Pelletier v. Canada (Attorney General), 2004 FC 1072

Date: 20040804

Docket: T-668-04

Citation: 2004 FC 1072

BETWEEN:

                                                              JEAN PELLETIER

                                                                                                                                            Applicant

                                                                         - and -

                                             ATTORNEY GENERAL OF CANADA

                                                                                                                                        Respondent

                                                        REASONS FOR ORDER

                                            (Delivered from the bench at Ottawa, Ontario

                                                               on August 4, 2004)

HUGESSEN J.

[1]                I have before me two motions by the Clerk of the Privy Council based on section 39 of the Canada Evidence Act, R.S.C. 1985, c. C-5 (the Act), asking me to sustain his objection to the production of certain documents requested by the applicants under rule 317 of the Federal Court Rules, 1998, in the context of two applications for judicial review brought by the applicants against certain orders by the Governor in Council relating to the applicants' status as employees or officers of certain Crown corporations.

[2]                Orders or orders in council adopted by the Governor in Council are being impugned and the applicants sought the production of the documentation relied on by the Governor in Council deciding as she did. In response to these requests made under rule 317, the Clerk of the Privy Council produced in each case a certification opposing the production of the documents requested because these documents were, according to the Clerk, confidences of the Queen's Privy Council for Canada under section 39 of the Act.

[3]                Here, I reproduce the actual text of the schedules to the two certifications by the Clerk in describing the documents to which he objects. First, in the Vennat case and second, in the Pelletier case.

[TRANSLATION]

SCHEDULE TO THE ATTESTATION OF ALEX HIMELFARB

DATED THE 10th DAY OF JUNE 2004 in

Michel Vennat v. Attorney General of Canada

1.              Submission to the Governor in Council (the content indicates February 2004).

Document #1 is a copy of a document consisting of information contained in a memorandum the purpose of which is to present proposals or recommendations to Council within the meaning of paragraph 39(2)(a) of the Canada Evidence Act (Act).

Document #1 is also a copy of a document consisting of information contained in an agendum of Council or a record recording deliberations or decisions of Council within the meaning of paragraph 39(2)(c) of that Act.

2.              Submission to the Governor in Council (the content indicates March 2004).

Document #1 is a copy of a document consisting of information contained in a memorandum the purpose of which is to present proposals or recommendations to Council within the meaning of paragraph 39(2)(a) of that Act.

Document #2 is also a copy of a document consisting of information contained in an agendum of Council or a record recording deliberations or decisions of Council within the meaning of paragraph 39(2) of that Act.

SCHEDULE TO THE ATTESTATION OF ALEX HIMELFARB

DATED THE 26th DAY OF MAY 2004 in

Jean Pelletier v. Attorney General of Canada

1.              Submission to the Governor in Council (the content indicates March 2004).

Document #1 is a copy of a document consisting of information contained in a memorandum the purpose of which is to present proposals or recommendations to Council within the meaning of paragraph 39(2)(a) of the Canada Evidence Act (Act).

Document #1 is also a copy of a document consisting of information contained in an agendum of Council or a record recording deliberations or decisions of Council within the meaning of paragraph 39(2)(c) of that Act.

2.              Ministerial Recommendation to the Governor in Council, signed by Tony Valeri, Minister of Transport (the content indicates March 2004).

Document #2 is a copy of a document consisting of information contained in a memorandum the purpose of which is to present proposals or recommendations to Council within the meaning of paragraph 39(2)(a) of the Canada Evidence Act (Act).

[4]                The Supreme Court of Canada recently ruled on the formal requirements for a certification made by the Clerk or by a minister under section 39 of the Act. I refer to the words of Madam Chief Justice McLachlin, who said the following in Babcock v. Canada (Attorney General), [2002] 3 S.C.R. 3:

It may be useful to comment on the formal aspects of certification. As noted, the Clerk must determine two things: (1) that the information is a Cabinet confidence within s. 39; and (2) that it is desirable that confidentiality be retained taking [page20] into account the competing interests in disclosure and retaining confidentiality. What formal certification requirements flow from this? The second, discretionary element may be taken as satisfied by the act of certification. However, the first element of the Clerk's decision requires that her certificate bring the information within the ambit of the Act. This means that the Clerk or minister must provide a description of the information sufficient to establish on its face that the information is a Cabinet confidence and that it falls within the categories of s. 39(2) or an analogous category; the possibility of analogous categories flows from the general language of the introductory portion of s. 39(2). This follows from the principle that the Clerk or minister must exercise her statutory power properly in accordance with the statute. The kind of description required for claims of solicitor-client privilege under the civil rules of court will generally suffice. The date, title, author and recipient of the document containing the information should normally be disclosed. If confidentiality concerns prevent disclosure of any of these preliminary indicia of identification, then the onus falls on the government to establish this, should a challenge ensue. On the other hand, if the documents containing the information are properly identified, a person seeking production and the court must accept the Clerk's determination. The only argument that can be made is that, on the description, they do not fall within s. 39, or that the Clerk has otherwise exceeded the powers conferred upon her.

[5]                In my opinion, it is clear beyond the shadow of a doubt that the two documents described by the Clerk in his schedule in the Vennat case, above, and the first document described in his schedule in the Pelletier case, have formal and fatal defects. There is no useful description given regarding the date, author, title or content of the documents. It was not per incuriam that Madam Justice McLachlin specifically mentioned the requirements of the rules of court for all jurisdictions regarding claims of solicitor-client privilege. There must be an adequate description of the document for which privilege is being claimed, not only so that it is possible to decide if the request for privilege is founded, but mostly so that it is possible to identify the document if, at a subsequent stage in the proceedings, an attempt is made to introduce it into evidence or if by any accident or even by inadvertence, it is filed before the Court. In this case, in regard to the documents that I mentioned earlier, this is not done; no useful description is given.

[6]                As for the second document in the Pelletier case, a minimal amount of detail is given in that the name of the author of the recommendation is stated. I could find this minimal description sufficient, but I need not decide the issue because in this case, the document in question was filed in the Court record and is before me. I am being asked to declare that it was filed inadvertently. And that also is possible. But the fact is that right now, the document is before me and I have knowledge of its content. Its content is such that it only reproduces - practically to the letter - the description which is given in the impugned order, i.e. it is a brief recommendation that the Governor in Council relieve Mr. Pelletier of his functions.

[7]                With respect, I say that the Clerk of the Privy Council could not reasonably find that it was in the public interest to keep confidential this document which, I repeat, is reproduced in the very text of the order, which is public. He could not reasonably make such a finding; he erred in law in so doing.

[8]                I therefore find that the two motions should be dismissed. No order as to costs.

                                                                                                                           "James K. Hugessen"             

                                                                                                                                                   Judge                            

Ottawa, Ontario

August 4, 2004

Certified true translation

Kelley A. Harvey, BA, BCL, LLB

                                                             FEDERAL COURT

                                                      SOLICITORS OF RECORD

DOCKET:                                                        T-668-04

STYLE OF CAUSE:                                         JEAN PELLETIER v. ATTORNEY GENERAL OF CANADA

DATE OF HEARING:                          August 4, 2004

PLACE OF HEARING:                                    Ottawa, Ontario

REASONS FOR ORDER BY THE HONOURABLE MR. JUSTICE HUGESSEN

DATED:                                                            August 4, 2004                         

APPEARANCES:

Suzanne Côté and

Patrick Girard                                                    FOR THE APPLICANT

Alberto Martinez                                               FOR THE RESPONDENT

Claude Joyal and

Rosemarie Millar                                               FOR THE CLERK OF THE PRIVY COUNCIL

SOLICITORS OF RECORD

Stikeman Elliott

Montréal, Quebec                                             FOR THE APPLICANT

Deslauriers, Jeansonne

Montréal, Quebec                                             FOR THE RESPONDENT

Morris Rosenberg

Deputy Attorney General of Canada                  FOR THE CLERK OF THE PRIVY COUNCIL