Supreme Court of Canada
Solicitor General of Canada, et al. v. Royal Commission (Health Records), [1981] 2 S.C.R. 494
Date: 1981-10-20
The Solicitor General of Canada and the Royal Canadian Mounted Police Appellants;
and
The Royal Commission of Inquiry into the Confidentiality of Health Records in Ontario and the Canadian Civil Liberties Association Respondents;
and
Superintendent Donald Heaton and Chief Superintendent Michael Spooner Interveners;
and
The Attorney General for Ontario, the Attorney General of Quebec, the Attorney General for New Brunswick, the Attorney General of British Columbia and the Attorney General for Alberta Interveners.
1980: October 14 and 15; 1981: October 20.
Present: Laskin C.J. and Martland, Ritchie, Dickson, Estey, Mclntyre and Chouinard JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Evidence—Police-informer privilege—Royal commission re confidentiality of health records—Records divulged to police without patient’s consent by physicians and hospital employees—Whether disclosure of informers’ identities prevented by privilege—The Public Inquiries Act, 1971, 1971 (Ont.), c. 49, ss. 7(1), 9, 10, 11—The Health Disciplines Act, 1974, 1974 (Ont.), c. 47, s. 50—The Public Hospitals Act, R.S.O. 1970, c. 378, s. 36—O. Reg. 577/75, s. 26(21)—R.R.O. 1970—Regulation 729, s. 48(1).
Respondent Commission stated a case to the Ontario Divisional Court asking if (1) the law recognized no privilege preventing disclosure of the identity of physicians and hospital employees who divulged medical information to the R.C.M.P. without patient authorization, and (2) if the Commission were right in requiring such disclosure from its witnesses. The issues in the courts below were enlarged, on application, because the appeal was said to raise constitutional issues. The first question fixed asked if the Commission were empowered to compel testimony from R.C.M.P. officers as to
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sources of information gathered in the discharge of duty and in the course of their duties of crime investigation and national security. The second question asked if, where there was a breach of a statutory obligation of confidentiality, there was a privilege prohibiting disclosure by police of their informants’ identities.
Held (Laskin C.J. and Dickson J. dissenting): The appeal should be allowed.
Per Martland, Ritchie, Estey, Mclntyre and Chouinard JJ.: The immunity from disclosure of the identity of police informers accorded in relation to information furnished to police in the course of the performance of their duties is general in scope. It applies except when disclosure of the informer’s identity, in the trial of a defendant for a criminal offence, could help show the defendant was innocent. The foundation for the rule is even stronger in relation to the function of police in protecting national security and has greater justification in protecting national security against violence and terrorism than in the investigation of crime.
The police-informer privilege applies even if the informant has communicated information which he should not have given. Here there was no legal duty not to communicate information regarding a patient to the police. The privilege is not given to the informer and misconduct on his part, therefore, does not destroy it. The privilege is that of the Crown which is in receipt of information under an assurance, express or implied, of confidentiality. The fact that it was the tribunal itself seeking the information did not affect the application of the rule for the privilege is not in any way diminished by any provision of The Public Inquiries Act, 1971.
Per Laskin C.J. and Dickson J., dissenting: A conclusion to the first question should not be attempted because of the generalized way in which it was put. The second question, however, connects with the two questions posed by the Royal Commission in the stated case.
The police-informer privilege should be recognized only in public prosecutions and criminal-related proceedings. It is not necessary to recognize the privilege in other types of proceedings merely because the police are involved and have been gathering information in the course of their police duties. Depending on the nature of the proceedings, there must be a discretion in the courts
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to determine whether and to what extent there should be disclosure—a balancing of the public interest in relevant disclosures and an assessment of countervailing public interest against disclosure. In cases other than criminal prosecutions and criminal-related proceedings, the courts generally must begin with a determination not to permit either party to deliberately withhold relevant and admissible evidence and must require attempts to do so to be justified and jealously scrutinized.
[Marks v. Beyfus (1890), 25 Q.B.D. 494; D. v. National Society for the Prevention of Cruelty to Children, [1978] A.C. 171; The Trial of Thomas Hardy for Treason (1794), 24 St. Tr. 199; R. v. Watson (1817), 32 St. Tr. 1; R. v. O’Connor (1846), 4 St. Tr. (N.S.) 935; Attorney-General v. Briant (1846), 15 M. & W. 169, 15 L.J. Ex. 265; Humphrey v. Archibald (1893), 20 O.A.R. 267; Rogers v. Home Secretary, [1973] A.C. 388; Reference re Legislative Privilege (1978), 18 O.R (2d) 529; 39 C.C.C. (2d) 226, referred to.]
APPEAL, enlarged by order made on application by the Solicitor General of Canada, from a decision of the Court of Appeal for Ontario dismissing the appeal of the Solicitor General and allowing the appeal of the Canadian Civil Liberties Association from a judgment on a stated case posing two questions to the Divisional Court of Ontario. Appeal allowed, Laskin C.J. and Dickson J. dissenting.
J.A. Scollin, Q.C., and Eric A. Bowie, for the appellant the Solicitor General of Canada.
R.J. Carter, Q.C., for the interveners Superintendent D. Heaton and Chief Superintendent Michael Spooner.
H.T. Strosberg, for the respondent the Royal Commission of Inquiry.
Marc Rosenberg and Chris Buhr, for the respondent the Canadian Civil Liberties Association.
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D.W. Mundell, Q.C., and R.M. McLeod, Q.C., for the intervener the Attorney General for Ontario.
Henri Brun, for the intervener the Attorney General of Quebec.
P.L. Cumming and H. Hazen Strange, Q.C., for the intervener the Attorney General for New Brunswick.
L.F. Lindholm and B.A. Barrington-Foote, for the intervener the Attorney General of British Columbia.
William Henkel, Q.C., for the intervener the Attorney General for Alberta.
The reasons of Laskin C.J. and Dickson J. were delivered by
THE CHIEF JUSTICE (dissenting)—By Ontario Order-in-Council 3566/77, as amended by Order-in-Council 1129/78, the Honourable Mr. Justice Horace Krever was appointed as a Royal Commission of Inquiry into the Confidentiality of Health Records under The Public Inquiries Act, 1971, 1971 (Ont.), c. 49. His terms of reference were as follows:
1. to review all legislation administered by the Minister of Health (for example, The Public Hospitals Act, The Health Disciplines Act, 1974, The Health Insurance Act, 1972, and The Mental Health Act), together with any other relevant legislation administered by other Ministers, and any Regulations passed thereunder, to determine whether proper protection is given to the rights of persons who have received, or who may receive, health services, to preserve the confidentiality of information respecting them collected under that legislation;
2. to review the legality of the administrative processes under the above Acts;
3. to investigate, inquire into and consider any misconduct, and any negligent or other improper activities, practices or conduct by any person, firm, corporation or organization in relation to the above Acts and Regulations and the administration thereof, including any non‑compliance by any person, firm, corporation or organization with any of the above Acts and Regulations, and any activities, practices or other conduct by any person, firm, corporation or organization which coerced, induced, persuaded or otherwise
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prompted any such misconduct, negligence or other improper activity, practice or conduct, or which constituted an attempt or an agreement to coerce, induce, persuade or otherwise prompt any such misconduct, negligence or other improper activity, practice or conduct; and
4. to report thereon to the Minister of Health with any recommendations for necessary amendments to the legislation and the Regulations passed thereunder.
The present appeal, which is here by leave of this Court, arises out of a case stated by the Royal Commission which posed two questions for the Divisional Court of Ontario. The questions were these:
(a) Was I correct in ruling that the law recognizes no privilege which operates so as to prevent the disclosure to the Commission of the identity of those physicians and hospital employees who divulged medical information to members of the R.C.M.P. without the patient’s authorization?
(b) Was I correct in requiring the witnesses to answer the questions seeking the disclosure of the identity of the physicians and hospital employees in question?
The Divisional Court, speaking unanimously through Osler J., answered the first question in two parts:
(i) “Yes” with respect to the identity of those physicians and hospital employees and other persons under the control and direction of the Board of a hospital who divulged information from a medical record to members of the Royal Canadian Mounted Police without the patient’s authorization;
(ii) “No” with respect to physicians and members of other self-governing professions with regulations regarding professional conduct and who at the time were acting in a professional capacity on their own responsibility and not under the direction or control of the Board of a hospital…
Its answer to the second question was that, in accordance with the answer to the first question, there could be no encompassing response, and it must depend upon the classification into which the informant falls in each case.
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On appeal to the Ontario Court of Appeal, the majority of the Court (Dubin J.A., Wilson J.A. concurring) and Brooke J.A., who dissented, disagreed in different respects with the judgment below. Dubin J.A. answered both questions in the affirmative; Brooke J.A. answered them in the negative.
It is not in dispute that the terms of reference of the Royal Commission make the identity of the persons who divulged medical information about patients relevant to the inquiry. What is in dispute is whether, in the circumstances attending the disclosures and having regard to the police duties of those to whom the disclosures were made, namely officers of the Royal Canadian Mounted Police, there is a privilege in such persons, as witnesses in the inquiry, to withhold the identity of their informants, albeit the informants were, even to the knowledge of the police witnesses, in breach of a duty of confidentiality with respect to medical information about hospital patients.
Powers of the Royal Commission
It is conceded that the Royal Commission was validly appointed and that the inquiry, both as to its nature and scope, was within the competence of the Legislature and Government of Ontario. There are a number of provisions of The Public Inquiries Act, 1971 which must be brought into account for the purposes of the present case. Section 4 states the general principle of openness of hearings to the public
…except where the commission conducting the inquiry is of the opinion that,
(a) matters involving public security may be disclosed at the hearing; or
(b) intimate financial or personal matters or other matters may be disclosed at the hearing that are of such a nature, having regard to the circumstances, that the desirability of avoiding disclosure thereof in the interest of any person affected or in the public interest outweighs the desirability of adhering to the principle that hearings be open to the public;
in which case the commission may hold the hearing concerning any such matters in camera.
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Sections 7(1), 9, 10 and 11 of the Act are as follows:
7.—(1) A commission may require any person by summons,
(a) to give evidence on oath or affirmation at an inquiry; or
(b) to produce in evidence at an inquiry such documents and things as the commission may specify,
relevant to the subject matter of the inquiry and not inadmissible in evidence at the inquiry under section 11.
…
9.—(1) A witness at an inquiry shall be deemed to have objected to answer any question asked him upon the ground that his answer may tend to criminate him or may tend to establish his liability to civil proceedings at the instance of the Crown or of any person, and no answer given by a witness at an inquiry shall be used or be receivable in evidence against him in any trial or other proceedings against him thereafter taking place, other than a prosecution for perjury in giving such evidence.
(2) A witness shall be informed by the commission of his right to object to answer any question under section 5 of the Canada Evidence Act.
10. A commission may admit at an inquiry evidence not given under oath or affirmation.
11. Nothing is admissible in evidence at an inquiry that would be inadmissible in a court by reason of any privilege under the law of evidence.
Confidentiality of Health Records
It was the breach of confidentiality of the health records of patients, particularly hospital patients, that brought about the inquiry. Hundreds of instances of the disclosure of such information without the consent of the patients were admitted during the course of the inquiry. In his reasons for the Ontario Court of Appeal, Dubin J.A. expressed the duty of confidentiality as between doctors and their patients in the following terms:
Members of the medical profession have a duty of confidentiality with respect to their patients. They are under restraint not to volunteer information respecting the condition of their patients or any professional services performed by them without their patient’s consent. In the absence of such consent, members of the medical
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profession breach their duty if they disclose such information unless required to do so by due process of law.
That duty is reinforced by legislative policy reflected in The Health Disciplines Act, 1974, 1974 (Ont.), c. 47, and in The Public Hospitals Act, R.S.O. 1970, c. 378, and is given precision by regulations under the respective Acts, especially by O. Reg. 577/75 under the former Act. Section 26 of the Regulation defines “professional misconduct” to mean, inter alia,
26. …
21. giving information concerning a patient’s condition or any professional services performed for a patient to any person other than the patient without the consent of the patient unless required to do so by law;
Regulation 729 under The Public Hospitals Act provides in s. 48(1) that subject to certain exceptions, not material here, “a [hospital] board shall not permit any person to remove, inspect or receive information from a medical record”. The reasons of the Divisional Court state, quite properly, that the prohibition (which is fortified by a penalty provision under s. 36 of The Public Hospitals Act) is directed only to a hospital board but the Court goes on to say that “it would result in an absurd position if individual members of the board, employees of the board or employees or servants of a hospital under the control of the board are to be permitted with impunity and in secrecy to remove, inspect, or receive information from a medical record when such acts are forbidden to the board itself”.
The Stated Case
The circumstances which gave rise to the stated case are recited in the case by Justice Krever, and I reproduce them as follows:
2. On the 8th day of June, 1978, at a public hearing of the Commission, certain members of the Royal Canadian Mounted Police (“R.C.M.P.”) were called upon to testify by Commission counsel.
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3. Superintendent Donald Harold Heaton (“Heaton”), and Chief Superintendent Michael Spooner, (“Spooner”) testified that, to their knowledge, medical information had been received by the R.C.M.P. on approximately 368 occasions from physicians and hospital employees in Ontario without the prior consent of the patient.
4. Corporal Glen Allan Gartshore, (“Gartshore”) testified that in January, 1976, he approached an employee of the Ontario Health Insurance Plan, (“O.H.I.P.”) and obtained without the patient’s consent, medical information in the form of the diagnostic codes submitted by the patient’s physician to O.H.I.P.
5. Commission counsel requested Heaton and Spooner to name those physicians and hospital employees from whom the R.C.M.P. had received medical information.
6. Commission counsel also requested Gartshore to name the O.H.I.P. employee from whom he had received medical information in January, 1976.
7. Counsel for the Federal Solicitor-General and the R.C.M.P. (“counsel”) objected to the questions set out in paragraphs 5 and 6 being answered.
8. Counsel reconsidered his objection as it related to the question set out in paragraph 6 and directed Spooner to disclose to me the name of the O.H.I.P. employee who delivered medical information to Gartshore in January, 1976. Spooner then did so.
9. The basis of the objection to the questions set out in paragraph 5 were as follows:
(a) in both civil and criminal litigation, the “police informer privilege” permits, in certain circumstances, a police officer to refuse to disclose the identity of an informant;
(b) physicians and hospital employees provided medical information to R.C.M.P. members without the authorization of the patient on the understanding that their identity would not be disclosed;
(c) the “police informer privilege” applied to the identity of these physicians and hospital employees; and
(d) this “police informer privilege” justified a ruling that the questions need not be answered because of the provisions of Section 11 of The Public Inquiries Act, 1971, which reads as follows:
“Nothing is admissible in evidence at an inquiry that would be inadmissible in a court by reason of any privilege under the law of evidence.”
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10. Counsel conceded that the identity of the physicians and hospital employees in question was clearly within my terms of reference and relevant to the inquiry undertaken.
11. Evidence was adduced by counsel that if the R.C.M.P. were required to identify the physicians and hospital employees from whom medical information had been obtained without the patient’s authorization, difficulty would be encountered in the future in obtaining from physicians and hospital employees medical information without the consent of the patient.
Justice Krever then noted in the stated case that after hearing extensive submissions from counsel, he ruled that the police informer privilege was not applicable to his inquiry. He pointed out that none of the cases cited to him in support of the privilege were cases “in which the source of the information whose identity was protected was under an obligation not to reveal the information in question”. In his view, if the communication ought not to be made and even if communicating it is not an offence, there is no right to conceal the identity of the person who was the source of the information. Hence, he ruled that the questions objected to should be answered and that the source of the information should be given. Being thereafter requested to state a case, he put the two questions set out earlier in these reasons.
The Judgments in the Ontario Divisional Court and in the Court of Appeal
The Divisional Court answered the two questions as it did on the footing that although there was no statutory privilege to withhold the identity of the informants, there was a common law privilege under which the identity of police informers was protected in the public interest referable to police duties in the detection of crime. The Court relied on the judgment of the Ontario Court of Appeal in Reference re Legislative Privilege and referred particularly to the reasons of Lacourcière J.A. for the majority who, in affirming the privilege, noted that the cases recognized one exception, namely, where in a criminal trial disclosure of
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the identity of the informer was material to the accused’s innocence. Reliance was also placed by the Divisional Court upon the judgment of Spence J. in Slavutych v. Baker, a case supporting the confidentiality (which had been promised) of a communication from a faculty member to a university president in the course of proceedings involving tenure of another faculty member.
The Divisional Court said this about the two cases:
Such cases as the two last mentioned have extended the doctrine of protection for an informer to authorities other than Crown or police officials in the strict sense. We are not aware of any decision in which that privilege, long established by the common law, with respect to police informers, has been reduced or limited, provided only that questions of good faith or the proper compass of the duty of the officer concerned were not in issue.
and it went on to say:
In our view, once it is established that the communication was made to a member of the R.C.M.P. in the course of his duty the name of the informer comes under the umbrella of privilege unless some new exception is to be made. This statement is not affected by whether the particular duty being carried out by the R.C.M.P. member is that of crime detection, crime prevention, counter-espionage or international intelligence, all of which duties are carried out by members of the R.C.M.P. from time to time and, the stated case assumes, each of the communications was made to an officer engaged in one or other of such duties.
Addressing itself then to the question whether a new exception should be made, the Divisional Court observed that “It was not argued before us that the privilege should be claimed with respect to any informer who, by the act of informing, clearly committed a breach of law, criminal or civil”. This, however, appears to have been the position taken before the Ontario Court of Appeal and it was also the position taken before this Court on the appeal to it. The Divisional Court pointed to one instance where objection to disclosure was withdrawn in respect of an employee of the Ontario Hospital Insurance Plan who was clearly prohibited under O.H.I.P. regulations from con-
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veying patient information without the patient’s consent.
The Divisional Court held, however, that there was merely a legislative indication of a policy against breach of confidentiality but, per contra, there was a clearly established police informer privilege under the law of evidence. There appears to have been recession by the Divisional Court from its “legislative indication” point where self-governing professions like the medical profession were concerned. Referring to The Health Disciplines Act and to Regulation 26 above-mentioned, giving power to the medical profession’s council on disciplinary authority power to determine whether any particular disclosure constitutes professional misconduct, the Court concluded that it must answer the first question in two parts. It used these words:
With respect to the identity of those physicians and hospital employees and other persons under the control and direction of the board of a hospital who divulge information from a medical record to members of the R.C.M.P. without the patient’s authorization the law recognizes no privilege which operates so as to prevent the disclosure to the Commission of their identity and the answer must be “yes”.
With respect to physicians and members of other self-governing professions with regulations regarding professional conduct similar to those we have outlined above and who at the time were acting in a professional capacity on their own responsibility and not under the direction or control of the board of a hospital the position is that there is a privilege which operates so as to prevent the disclosure to the Commission of their identity and the answer must be “no”.
In short, the Divisional Court found that despite the established police informer privilege, it did not protect the identity of hospital board employees, whether physicians or others, who disclosed information about patients in breach of confidentiality of such information. However, the Court also held that the police informer privilege did protect from disclosure the identity of those physicians who, acting in their professional capacity on their own and not under the direction of a hospital board, improperly communicated information about patients to the R.C.M.P.
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I confess to difficulty in understanding the distinction so made or, indeed, the basis for it and so, as I read the reasons in that Court, did the Court of Appeal. In his dissenting opinion, Justice Brooke felt that the Divisional Court was creating a new exception to the police informer privilege and that (to use his words) “evidence identifying as informers doctors and persons employed by public hospitals and doctors in private practice was inadmissible by reason of the privilege”. The learned dissenting Justice of Appeal concluded on his reading of the authorities that the police informer privilege was the privilege of the Crown or of the state and outweighed the private interest in the maintenance of the confidential relationship between doctor and patient. Moreover, Justice Brooke raised a constitutional issue in these terms:
I doubt that the provincial legislature is competent to pass legislation making admissible evidence of the identity of persons who give information to the police in the course of their investigation into crime or national security and so to displace the privilege of the Crown in that regard. This legislation did not purport to do that and I do not think that the court should attempt to do so.
Coming to the reasons of Dubin J.A., I agree with him in his denial of the distinction drawn by the Divisional Court between physicians in private practice and physicians under the direction of a hospital board. He said this on the point:
The Divisional Court appears to have been influenced in making the distinction between physicians in private practice and physicians under the direction or control of a board of governors of a hospital by reason of the penal provision in The Public Hospitals Act. I would have thought that the provisions of The Public Hospitals Act were directed towards persons who were not physicians, since the conduct of all physicians is governed by the provisions of The Health Disciplines Act. However, assuming that the provisions of The Public Hospitals Act are wide enough to encompass physicians, as has already been observed the penal provision would not appear to apply to a physician or a hospital employee acting on his own. Thus, the penal provision in The Public Hospitals Act does not appear to me to be in any way decisive. In my opinion the public policy designed to protect the confidentiality of the physician-patient relationship is as clearly expressed in The Health Disci-
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plines Act as it is in The Public Hospitals Act, and no distinction can be made between them on that issue. There is no reason to differentiate the position of physicians in private practice from those who are engaged by a hospital.
In dealing with the central issue of privilege, Dubin J.A. notes, correctly, that the mere fact that information supplied to the R.C.M.P. was given to them in confidence does not preclude its disclosure in judicial proceedings. Certainly, disclosure at an inquiry under The Public Inquiries Act, 1971 is within the principle. What then of the police informer privilege? As to this, Dubin J.A., after referring to it, in both case law and text, went on to say:
However, in no case, which I am aware of, has the police-informer privilege been extended to a case where the informer is in turn under a legal duty not to disclose the information to the police, or anyone else, and where the information has been obtained in breach of such duty. Nor am I aware of any case where the privilege has been extended in a manner which would frustrate a duly constituted tribunal, directed to inquire into the breaches of such duty, from fulfilling its mandate.
In his view, it was wrong to approach the case before him, as did the Divisional Court and Brooke J.A., according to whether a new exception should be made to the police informer privilege. Rather, in his words:
…it is first to be determined whether, under the circumstances disclosed in the stated case, there is a privilege under the law of evidence which would preclude the Commissioner from obtaining the relevant and admissible evidence.
In my opinion there can be no privilege when the informer in providing information to the police is in breach of a legal duty not to disclose such information.
Three other passages in the reasons of Dubin J.A. emphasize this point. First,
…in the case of a physician or a hospital employee, what emerges from the statutes hereinbefore referred to and from the common law is that there should be no disclosure unless a physician or a hospital employee is
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required by law to make such disclosure. Under such circumstances, in my opinion, it cannot be said that the law enforcement agencies should be encouraged to obtain such information other than by due process of law, nor should the physician or the hospital employee be encouraged to provide such information when not required to do so.
Second,
…where the informer is in breach of a duty even where no penal consequences would follow, it would be contrary to public policy to recognize the privilege asserted. The patient’s right to privacy would be an illusory one only, if the privilege were recognized under such circumstances. In my opinion a more important public interest is served by disclosure of the identity of the informer in such circumstances than by protecting the identity of the informer from disclosure.
In my respectful opinion it is not in the public interest to encourage persons who are under a duty of non-disclosure to make disclosure, and to encourage law enforcement agencies to obtain such information under those circumstances.
And, third,
The privilege asserted in this case should only be recognized when by doing so the public interest is best served. In D. vs. National Society for the Prevention of Cruelty to Children, [[1977] 1 All E.R. 589], Lord Hailsham stated at p. 605:
“The categories of public interest are not closed, and must alter from time to time whether by restriction or extension as social conditions and social legislation develop.”
The legislation under consideration by the Commissioner is designed to protect the privacy of a patient’s medical information. Once it is shown that such privacy has been invaded in a manner not authorized by law, even where well intended, the identity of the informer cannot be the subject of a privilege.
I should note that in his reasons Dubin J.A. referred to a concession by counsel for the appellants, the Solicitor General of Canada and for the R.C.M.P., that if the informer was breaking the law in the sense of doing an act for which a penalty is provided, no privilege as to the identity of the informer could be asserted. In this Court, it was said by counsel that such a concession was not made and I am content to proceed on that basis.
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Enlargement of the Issues in this Court
After leave to appeal was given by this Court on June 18, 1979, to bring this case here, and after notice of appeal was filed on August 5, 1979, the appellant Solicitor General of Canada applied for an order stating two constitutional questions, said to be raised in the appeal, which enlarged the issues canvassed in the Courts below. By an order dated August 8, 1979 as amended by an order of September 10, 1979, Mclntyre J. fixed the following questions:
1. Does the Public Inquiries Act, 1971, S.O. c. 49, and in particular section 7 thereof, authorize the Respondent, The Royal Commission of Inquiry into the Confidentiality of Health Records in Ontario to compel testimony from officers of the Royal Canadian Mounted Police as to the sources of information, gathered by them in the course of their investigation into crime or national security in the discharge of their duty as members of the Royal Canadian Mounted Police?
2. Where:
a) a Commission of Inquiry has been created by the Lieutenant‑Governor‑In‑Council, the subject matter of which is conceded to be properly within provincial jurisdiction, and
b) during such Inquiry the identity of persons who have breached their obligation of confidentiality under The Health Disciplines Act, 1974, S.O. 1974, c. 47, and regulations made thereunder or The Public Hospitals Act, R.S.O. 1970, c. 378 and regulations made thereunder is conceded to be relevant,
does there exist a privilege which prohibits disclosure by police of the identities of persons who furnish information to the police in the course of their investigations into crime or national security?
The first question appears to me to go beyond the compass of the facts upon which a case was stated by Mr. Justice Krever. On its face, it is not expressly related to the disclosure of health records nor to the identity of those who make the disclosure. Rather, it appears to raise, in a general way, the right of a provincial commission of inquiry
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(engaged, I must assume, in an inquiry on matters within provincial competence) to compel the R.C.M.P. to disclose sources of information which they have gathered in carrying out criminal and national security investigations.
As originally put in the order of August 8, 1979, the second question was as follows:
2. Can an obligation of confidentiality imposed by the Health Disciplines Act, 1974, S.O. 1974, c. 47, and regulations made thereunder by the Public Hospitals Act, R.S.O. 1970, c. 378 and regulations made thereunder operate so as to abrogate the rule of evidence in criminal matters that the names of persons who furnish information to the Police, in the course of police investigations, shall not be admitted in evidence?
I draw particular attention to the words of this question referring to “the rule of evidence in criminal matters” against disclosure of the identity of police informers. As revised by the amending order of September 10, 1979, the second question was broadened by referring to a privilege of non-disclosure of the identity of police informers without its earlier limitation to “criminal matters”.
It is desirable to make some observations here about the practice of the Court when in an appeal (that is, where leave has been given, if required, and notice of appeal has been filed) an appellant seeks to pose a constitutional question or questions said to arise in the case. An application to that end comes usually before the Chief Justice or before any other judge of the Court, and if the record appears to raise a constitutional issue or issues, an order fixing them for consideration will be made without any attempt by the Chief Justice or judge to determine at that stage that the question or questions have merit or will necessarily require an answer. Counsel applying and appearing on the application (which is usually ex parte) may be assisted or suggestions made for the formulation of the question or questions sought to be put but, this apart, the carriage of the matter (unless it is so far-fetched or unreal as to warrant a refusal) is in the hands of the applicant. It must be remembered that the Rules of the Court require that notice of
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any constitutional question must be given to the Attorney General of Canada, and to the respective Attorneys General of the provinces so that they may, if so moved, intervene, and intervention may also be sought by other non-parties but they can only come in by leave.
I have made those observations because I have come to the conclusion that I should not attempt to answer the first question because of the generalized way in which it has been put. There is some similarity in it to what was before this Court in Di Iorio v. Warden of the Montreal Jail, and it could also require an advertence to Attorney General of Quebec and Keable v. Attorney General of Canada, but there is not the context in Question 1 which was provided in the two cases that I have cited. This cannot be said of the second question which connects directly with the two questions posed by the Royal Commission in the stated case. My opinion is, therefore, that I should limit myself to the two questions in the stated case as also reflected in the second question posed in Justice Mclntyre’s amended order.
I am not to be taken as saying that the first question should not have been put. The parties, or at least the appellant, may have thought that the reference in it to the particular Royal Commission gave sufficient context to its otherwise general terms to make it worthy of consideration. Unlike the second question, however, it does not confine itself to health records although that may be implicit in it; and so too may be the question of identity, raised by the second question, when “sources of information” is made a pivotal point in the first question. On this view, there is substantial repetition despite the differences in formulation, and it is better therefore to proceed on the second question alone, relating as it does to the two questions in the stated case.
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Disposition of the Issues
It is recognized, and I have already alluded to this, that merely because information is confidential does not ordinarily preclude its disclosure in evidence when commanded in a judicial proceeding in which it is relevant. A breach of confidence may, of course, give rise to an action for breach of contract or it may have a tort aspect, as where trade secrets are concerned, but no such considerations arise here. The recent judgment of this Court in Slavutych, supra, shows that confidence may be protected by denying resort to information elicited in confidence, at least where it is sought to use the information against the person providing it. The present case is not concerned with confidential information as such but rather with a claim of privilege in which, as is common to all such claims, confidence is a key element.
What the Slavutych case established is that the categories of privilege are not closed. A similar view was expressed by the House of Lords in D. v. National Society for the Prevention of Cruelty to Children, where that Court preferred the phrase “public interest” to the term “privilege”. This Court, speaking through Spence J. in the Slavutych case, was of the opinion that the fourfold test propounded in Wigmore on Evidence, vol. 8, 1961 (McNaughton Rev.), p. 527, para. 2285 provided a satisfactory guide for the recognition of a claim of privilege. It is unnecessary, however, to invoke the test here. No doubt can be cast upon the existence of a police informer privilege to protect from disclosure the identity of informers whose assistance is important in the investigation and detection of crime. The rationale is clear enough; were it not so, such sources of aid to the police would dry up. The information which informers may provide is one thing and is, of course, intended to be used and disclosed. Their identity is something else, unless they choose to reveal themselves or are otherwise revealed.
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The important question for present purposes, however, concerns the limits of the police informer privilege. Three considerations arise. First, what must be shown to support it? Second, and related to the first, does the privilege extend to other than criminal proceedings or criminal-related proceedings? Third, even if it does extend beyond such proceedings, may it be asserted in breach of a confidence arising out of a doctor-patient relationship or a hospital-patient relationship (encompassing hospital employees) which is fortified by or rests upon legislation? There are two separate but intersecting relationships involved here; that of the police and their informer doctors or hospital employees and that of those informers and hospital patients whose medical records have been disclosed to the police without the permission of those patients. I leave for the moment, the question of what must be shown to support the police informer privilege and turn to the other two considerations that I have mentioned.
Brooke J.A. noted in his reasons that the police informer privilege was the privilege of the Crown or of the state. This appears to me to be merely a recognition that prosecutions are generally in the name of the Crown and the police informer privilege is asserted in its name. It is not a privilege belonging to the police as such—they are not the Crown—but one which they may assert at the behest of the Crown in whose name criminal prosecutions are launched and pursued. In the present case, there is no claim of privilege in the public interest, such as may be made pursuant to s. 41 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10. Moreover, this case, in the aspect under consideration, is in no way governed by the judgment of this Court in Attorney General of Quebec and Keable v. Attorney General of Canada, supra, which involved, inter alia, an attempt to compel a minister of the Crown in right of Canada to testify and to produce documents before a provincial commission of inquiry and an attempt to inquire into the institutional operations of the Royal Canadian Mounted Police. This
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Court held that the testimony and the line of inquiry were constitutionally impermissible.
What is relied on here is the police informer privilege as it developed and exists at common law. Marks v. Beyfus is a much quoted authority on the privilege. It was a civil action for malicious prosecution, the plaintiff having been acquitted on a charge of fraud. The defendant Beyfus (he and others were alleged to have conspired in the prosecution of the plaintiff) had sworn the information upon which the plaintiff had been committed for trial and that document was put in evidence at the civil trial. The plaintiff called the Director of Public Prosecutions as a witness and he testified that he had instituted the prosecution. He also mentioned a statement in writing that had been given to him but he refused to disclose his informants unless so ordered by the trial judge. The latter refused to make an order and, in the result, the plaintiff was non-suited. The Divisional Court refused a new trial and a further appeal was dismissed. Two passages in the reasons of the Court of Appeal are of importance. First, there are the following words of Lord Esher (at p. 498):
What, then, is the rule as to the disclosure of the names of informants, and the information given by them in the case of a public prosecution? In the case of Attorney General v. Briant [24 St. Tr. 199], Pollock, C.B., discussing the case of Rex v. Hardy [15 M. & W. 169], says that on all hands it was agreed in that case that the informer, in the case of a public prosecution, should not be disclosed; and later on in his judgment, Pollock, C.B., says: “The rule clearly established and acted on is this, that in a public prosecution a witness cannot be asked such questions as will disclose the informer, if he be a third person… and we think the principle of the rule applies to the case where a witness is asked if he himself is the informer.” Now, this rule as to public prosecutions was founded on grounds of public policy, and if this prosecution was a public prosecution the rule attaches; I think it was a public prosecution,
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and that the rule applies. I do not say it is a rule which can never be departed from; if upon the trial of a prisoner the judge should be of opinion that the disclosure of the name of the informant is necessary or right 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 that must prevail. But except in that case, this rule of public policy is not a matter of discretion; it is a rule of law, and as such should be applied by the judge at the trial, who should not treat it as a matter of discretion whether he should tell the witness to answer or not.
Second, there is this passage from the reasons of Bowen L.J. [at pp 499-500]:
The only question which remains for our decision is, whether the Director of Public Prosecutions was right in objecting to answer the questions put to him, and whether the judge was right in saying that on grounds of public policy he ought not to be asked to disclose the name of his informant. That depends upon whether this was a public prosecution; if so, then neither upon the criminal trial nor upon any subsequent civil proceedings arising out of it, ought the Director of Public Prosecutions, upon grounds of general policy, to be asked to disclose the name of his informant. The only exception to such a rule would be upon a criminal trial, when the judge if he saw that the strict enforcement of the rule would be likely to cause a miscarriage of justice, might relax it in favorem innocentia; if he did not do so, there would be a risk of innocent people being convicted.
…
I desire to add that my opinion is based entirely upon the fact that a prosecution instituted or taken up by the Director of Public Prosecutions is a public prosecution, and that the question whether the Director of Public Prosecutions is an officer of state, and as such entitled to claim privilege for state acts, does not arise in the present case.
(For a Canadian illustration, see Humphrey v. Archibald.)
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What emerges from these passages is that the informer privilege arises for consideration in public prosecutions. However, even there the identity of an informer may have to be disclosed if it may be material to the innocence of the accused. Regina v. Richardson is an illustration of this exception; and see also R. v. Barton. The rationale here is also clear. The prosecution has a duty to ensure that innocent persons are not convicted, a duty to see that justice is done, and hence should not seek to withhold from disclosure on the ground of privilege or on the ground of public interest anything that would be material to the defence.
In Rogers v. Home Secretary, the House of Lords was confronted, inter alia, with a claim of privilege in respect of the requested disclosure of a letter written in confidence to the Gaming Board of Great Britain whose duty it was to investigate the character of applicants for gaming licences before giving its consent for an application for a licence. The letter was written by a police officer and reflected on the plaintiff who was seeking a licence, as was a company of which he was a director. A copy of the letter came into the plaintiffs hands, abstracted by improper means from the files of the Board or of the police. The plaintiff sought disclosure for a proposed prosecution of the writer for criminal libel as a means of clearing his reputation. Lord Reid assimilated the case and the claim to deny disclosure (as a matter of the public interest, Crown privilege being regarded as a misleading term) to the police informer privilege, pointing out that much of the information which the police pass on to the Gaming Board must come from sources which the police would feel must be protected and “Even if information were given without naming the source, the very nature of the information might, if it were communicated to the person concerned, at least give him a very shrewd idea from whom it had come”. Thus, he said (at p. 401):
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It has long been recognized that the identity of police informers must in the public interest be kept secret and the same considerations must apply to those who volunteer information to the board. Indeed, it is in evidence that many refuse to speak unless assured of absolute secrecy.
The particular nature of the Rogers case distinguishes it from the situation in the present appeal, even if it be taken that in Rogers the denial of disclosure was to protect informers and was not necessarily limited to public prosecutions. The following passage from the reasons of Lord Reid at pp. 401-2 shows the context in which disclosure was refused in the public interest:
It is possible that some documents coming to the board could be disclosed without fear of such consequences [i.e. the likelihood of the source of the information being directly or indirectly revealed]. But I would think it quite impracticable for the board or the court to be sure of this. So it appears to me that, if there is not to be very serious danger of the board being deprived of information essential for the proper performance of their difficult task, there must be a general rule that they are not bound to produce any document which gives information to them about an applicant.
We must then balance that fact against the public interest that the course of justice should not be impeded by the withholding of evidence. We must, I think, take into account that these documents only came into existence because the applicant is asking for a privilege and is submitting his character and reputation to scrutiny. The documents are not used to deprive him of any legal right. The board have a wide discretion. Not only can they refuse his application on the ground of bad reputation although he may say that he has not deserved that reputation; it is not denied that the board can also take into account any unfavourable impression which he has made during an interview with the board.
A recent series of cases in the House of Lords, of which the Rogers case, supra, is one, has examined the question of disclosure of information given in confidence and of the identity of the informant, but none of them involved the police informer privilege. Alfred Crompton Amusement
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Machines Ltd. v. Customs and Excise Commissioners (No. 2), which preceded the Rogers case, deserves mention in affirming that confidence is not in itself a basis for a claim of privilege but is relevant to a determination whether in the public interest disclosure should be refused. (The legal professional privilege was a main feature in that case but it is of no concern here). Lord Cross, who delivered the majority opinion, noted that when privilege from disclosure is claimed in the public interest and there are countervailing considerations in favour of disclosure, a balancing must be made to see where the weightier considerations lie. After asserting that in the particular situation the case against disclosure of certain information was not as strong as was the case against disclosing the name of an informant (supplying information to the Customs and Excise Commissioners referable to the proper computation of purchase tax payable by the appellant), he laid down the following proposition (at p. 434):
In a case where the considerations for and against disclosure appear to be evenly balanced the courts should, I think, uphold a claim to privilege on the ground of public interest and trust to the head of the department concerned to do whatever he can to mitigate the ill-effects of non-disclosure.
Crompton involved a claim of Crown privilege which, as already noted, was not put forward as such in the case at hand.
Following Crompton and Rogers came D. v. National Society for the Prevention of Cruelty to Children, supra, and, more recently, Science Research Council v. Nassé. This last‑mentioned case concerned discovery of confidential documents, and it is enough to say of it that it affirmed the proposition in Crompton that confidence is not in itself a basis for non‑disclosure. Reference may also be made to the expressed regret there of Lord Scarman that the term “public interest immunity”
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had replaced “the… rejected term ‘Crown privilege’”. Apart from Rogers, already discussed, the important decision having some relevance here is D. v. National Society for the Prevention of Cruelty to Children.
It was also a discovery case arising out of a claim for damages against the Society founded on negligence causing personal injuries to a mother because of the conduct of an inspector of the Society who acted upon a complaint of an informant that the mother’s baby was being maltreated. The identity of the informant was central to the claim for discovery. The Society was incorporated by royal charter and was “an authorized person” under the Children and Young Persons Act 1969, 1969 (U.K.), c. 54, to institute care proceedings for the protection of children and young persons who were ill-treated or neglected. It solicited help from the public to let its officers know of children who might be suffering from neglect or ill-treatment, and promised, in its literature, that it would treat the name of any informant and the information given to the Society as confidential. The House of Lords rejected the submission that nondisclosure in the public interest was restricted to the central organs of the state or to the public service, and it concluded that the balance here lay in refusing disclosure of the identity of the Society’s informant.
An analogy was drawn to the police informer privilege, and counsel for the appellant Solicitor General relied on the following passage from the reasons of Lord Diplock (at p. 218):
The public interest which the N.S.P.C.C. relies upon as obliging it to withhold from the plaintiff and from the court itself material that could disclose the identity of the society’s informant is analogous to the public interest that is protected by the well established rule of law that the identity of police informers may not be disclosed in a civil action, whether by the process of discovery or by oral evidence at the trial: Marks v. Beyfus (1890) 25 Q.B.D. 494.
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The rationale of the rule as it applies to police informers is plain. If their identity were liable to be disclosed in a court of law, these sources of information would dry up and the police would be hindered in their duty of preventing and detecting crime. So the public interest in preserving the anonymity of police informers had to be weighed against the public interest that information which might assist a judicial tribunal to ascertain facts relevant to an issue upon which it is required to adjudicate should be withheld from that tribunal. By the uniform practice of the judges which by the time of Marks v. Beyfus, 25 Q.B.D. 494 had already hardened into a rule of law, the balance has fallen upon the side of non-disclosure except where upon the trial of a defendant for a criminal offence disclosure of the identity of the informer could help to show that the defendant was innocent of the offence. In that case, and in that case only, the balance falls upon the side of disclosure.
My Lords, in Reg. v. Lewes Justices, Ex parte Secretary of State for the Home Department [1973] A.C. 388 [the Rogers case] this House did not hesitate to extend to persons from whom the Gaming Board received information for the purposes of the exercise of their statutory functions under the Gaming Act 1968 immunity from disclosure of their identity analogous to that which the law had previously accorded to police informers. Your Lordships’ sense of values might well be open to reproach if this House were to treat the confidentiality of information given to those who are authorised by statute to institute proceedings for the protection of neglected or ill-treated children as entitled to less favourable treatment in a court of law than information given to the Gaming Board so that gaming may be kept clean.
Relying on the above-quoted observations of Lord Diplock in the N.S.P.C.C. case, counsel for the Solicitor General of Canada contended that the police informer privilege applied in civil proceedings as well as in criminal proceedings and, moreover, that a public inquiry was also a proceeding in which the privilege should be recognized. Lord Diplock made his assertion that the identity of police informers may not be disclosed in a civil action by relying on Marks v. Beyfus, which was a criminal-related proceeding. It may be that he intended to loosen the limitation on non-disclosure evident in Marks v. Beyfus. Certainly, the N.S.P.C.C. case called for only an analogical consideration of the police informer privilege and was
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disposed of on a balancing test, the balance being found against disclosure of the identity of the informant.
In the present case, on one view of it advanced by the appellants, there is no need to rely on analogy because it is the established police informer privilege itself that is invoked to deny disclosure of the identity of the informants. Is it then open to a party in a public inquiry to invoke the police informer privilege for its police witnesses where, on the record, as revealed in the stated case, the police were engaged in a widespread exercise in ferreting out patient medical information but with no indication that any of it was actually or imminently concerned with prosecutions? It seems to me that there is a decided difference between the situation in the Rogers and N.S.P.C.C. cases and the present case. In those cases, statutory authorities were eliciting information to enable them to carry out their administrative duties. Here, a public inquiry of a judicial character is charged with examining certain issues and reporting on them, issues which directly involve the identity of those who have improperly disclosed patient information to the police.
The police informer privilege should, in my view, be confined to its recognition in public prosecutions (which gave it birth) and to criminal-related proceedings. Apart from these, I would not agree that it be an inexorable rule to recognize a privilege in other types of proceedings merely because the police are involved and have been gathering information in the regular course of their police duties. Depending on the nature of the proceedings in which information and the identity of informants known to the police are sought to be revealed, there must be a discretion in the courts to determine whether and to what extent there should be disclosure. This would involve, as in other cases, balancing the public interest in the disclosure of all relevant information, including identity, that would assist in the proper determina-
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tion of issues arising in the particular proceedings and with due regard to the character of proceedings, and assessing whether there is a countervailing public interest against disclosure in the particular proceedings.
The record here shows that in 368 instances medical information about patients was improperly elicited. In the one case where identity was disclosed, that of an O.H.I.P. employee, the police evidence was that on realizing that the employee was under an obligation not to give out patient medical information without the patient’s consent, they suspended the practice. The evidence given by the police also indicated that they were fully aware that, in proper circumstances, they could obtain search warrants where their crime surveillance and their national security surveillance activities made it necessary that they obtain patient medical information. A good deal of their evidence related to a mistaken view that a promise of confidentiality was enough to shield their informants from disclosure of their identity.
Counsel for the appellant Solicitor General appears to have realized that an indiscriminate sweeping claim for the police informer privilege could not be sustained with respect to the 368 instances in which information was improperly elicited. In his submissions to this Court he said he was prepared to abandon the assertion of a privilege of non-disclosure in all but 138 cases which, he alleged, related to security situations. It did not appear that in any of those situations prosecutions were contemplated in which the patient medical information would be material.
The evidence given by officers of the R.C.M.P. to support non-disclosure of the identity of their doctor informers and their hospital employee informers was to the effect that they elicited patient medical information without patient permission for three purposes. First, they needed the information to assist them in enforcing federal narcotic control legislation; second, they needed
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psychiatric information about certain patients who might pose a threat to foreign dignitaries and other prominent individuals; and, third, they needed the information to assist them to combat subversion, espionage and terrorism. This was highly generalized evidence, and it seems probable that because of its generality, counsel for the Solicitor General of Canada dropped his objection to disclosure of identity in all but 138 allegedly national security situations. Counsel for the R.C.M.P., who were separately represented, took a more intractable position, insisting on the police informer privilege as a rule of law but conceding that if a distinction was to be drawn between crime detection and national security the latter should be accorded priority with respect to the privilege.
I am unable to accept the proposition that a police informer privilege exists at large, so to speak, as a matter of law. I repeat that if it has achieved the status of a rule of law it is only where it is asserted in criminal prosecutions or in criminal-related proceedings and, hence, in specific situations in such proceedings. Where immunity from disclosure of the identity of informers is sought in other proceedings or in respect of a public inquiry in which identity is relevant, as is the case here, the desirable approach is that expressed by Lord Hailsham in the N.S.P.C.C. case (at p. 223):
I start with the assumption that every court of law must begin with a determination not as a general rule to permit either party deliberately to withhold relevant and admissible evidence about the matters in dispute. Every exception to this rule must run the risk that because of the withholding of relevant facts justice between the parties may not be achieved. Any attempt to withhold relevant evidence therefore must be justified and requires to be jealously scrutinised.
I am of the opinion that the same approach should, a fortiori, be taken in a Royal Commission of Inquiry when there is, as here, a dominant public interest going beyond any particular case
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and aiming at recommendations which may be the basis of legislative reform. Indeed, I go further in the present case because it is manifest that one of the reasons, if not the principal reason for the establishment of the Royal Commission was the known fact that confidentiality, supported as it was by legislation and regulations, was being improperly breached. It strikes me as ironic to have it urged, in the wholesale manner in which it was before Justice Krever, that notwithstanding the violation of law involved in the breaches of confidentiality the identity of those who committed the breach should be shielded by those who induced it merely because they were engaged in police duties.
Section 11 of The Public Inquiries Act, 1971, upon which the appellants relied, does not go any farther than to require the Royal Commission and, ultimately, the courts to determine whether there is a privilege which can be invoked in the inquiry. It is not enough to say that because there is a recognized police informer privilege it applies ipso facto to the inquiry. The rationale which sustains the privilege in criminal prosecutions or in criminal-related proceedings, such as actions for malicious prosecution, cannot apply to situations where there is no right to use an informer because a breach of the law would be involved in so doing.
There are two other considerations which, in my view, have a bearing on where the balance lies in determining whether the public interest in the disclosure of all relevant evidence should prevail against claimed non-disclosure of the identity of informers, even assuming that such a claim may be made. One is that the police may ask for search warrants if they have a basis for seeking them. The second is that the Royal Commission is entitled, under s. 4(a) of The Public Inquiries Act, 1971 to conduct its hearings in camera if of the opinion that matters involving public security may be disclosed at the hearing. I construe this provision, in the circumstances of the present case, as entitling the Royal Commission to decide whether public security is involved so as to make it appropriate to conduct in camera the hearings in which such
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matters arise. This by no means affects disclosure but it would be for the Commissioner to decide how to deal with the disclosures in the report.
It follows from what I have said that the balance lies in requiring disclosure of the identity of the informants in the 138 cases in which objection to disclosure was asserted, and I would, accordingly, dismiss the appeal. I would answer each of the questions in the stated case in the affirmative and would answer the second question posed in the amended order of Mclntyre J. in the negative.
I do not think that this is a case for costs, and there will be no order as to costs either in respect of the parties or of the intervenants.
The judgment of Martland, Ritchie, Estey, Mclntyre and Chouinard JJ. was delivered by
MARTLAND J.—The circumstances which gave rise to the present appeal are set out in the reasons for judgment of the Chief Justice and need not be repeated. The issue which is raised is as to whether officers of the Royal Canadian Mounted Police can be compelled to disclose to a Royal Commission appointed under The Public Inquiries Act, 1971, 1971 (Ont.), c. 49, the identities of persons, to whom an assurance of confidentiality was given, from whom they have obtained information, while acting in the course of their duties in connection with the investigation of crime or national security.
Brooke J.A., in his dissenting reasons in the Ontario Court of Appeal, gave the following background to the issue:
The questions to the Divisional Court arose out of the giving of information by physicians in private practice and physicians and others employed in public hospitals without the patients’ consent to members of the Royal Canadian Mounted Police. It is conceded, and it is important, that in each instance the officer made inquiry and received information from either a doctor or a hospital employee, the police officer was acting in the
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course of his duty in the investigation of crime or national security.
In response to the Commissions’ Summons, Superintendent Heaton and Chief Superintendent Spooner appeared and testified before the Commission. It was their evidence that to their knowledge without the prior consent of the patient medical information had been obtained by the Royal Canadian Mounted Police from physicians and other hospital employees and from physicians who were in private practice. No distinction is drawn between instances where a physician may have gone to the police with information and those where the police have sought the physician out because he knew what they needed to know to carry out their public duty. When they were asked to disclose the names of the informants objection was taken on the grounds that evidence as to the identity of persons who furnish information to a police officer in connection with his lawful duties under an express or implied assurance of anonymity and confidentiality is protected from disclosure in a Court by reason of a well-established privilege based on public policy and consequently was inadmissible pursuant to s. 7(1) and 11 of The Public Inquiries Act, S.O. 1971, c. 49. It was conceded that the names were within the Commissioner’s terms of reference and so relevant to the inquiry.
The officers were examined for the purpose of indicating in a general way the nature of the responsibilities of the police force as a national law enforcement agency and the degree upon which they depended upon the cooperation of the Canadian public including physicians and hospital employees for the proper fulfillment of their duties. They emphasize the importance of this information to their present and future operations to detect crime and criminals and to protect the Canadian Public. When the police sought information there was no suggestion it was obtained through other than a direct approach to the person who had the information and there was no suggestion of coersion[sic] or pressure or any approach that smacked of these things. The evidence was that generally there had been cooperation based on public policy and consequently was inadmissible pursuant to s. 7(1) and 11 of The Public Inquiries Act, S.O. 1971, c. 49. It was conceded that the names identity of the informant and the nature of the information would be treated in confidence.
With examples of circumstances in which that information was sought counsel pointed out that in the final analysis these sources were sources of vital information for effective police work and if there were no privilege against the disclosure of identity this source would
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simply dry up. I think that is correct. If one removed the assurance presently available to almost all others that he would not be identified, and on the contrary told the doctor that his identity as an informer is not privileged and may be disclosed in the court, the serious personal jeopardy, perhaps danger, in which he may place himself and his family will reasonably become a dominant consideration in his attempt to form a conscientious judgment in weighing the conflicting duty to his patient with what he conceives as his duty to his neighbour (the public), to protect him from crime by conveying what he believes to be important information to the police.
It was also pointed out that there was no other means by which this information could be obtained and that no court had the power to order or sanction its disclosure. It was conceded that s. 48(2)(a) of the regulations passed pursuant to The Public Health Act was not applicable.
The provisions of The Public Inquiries Act, 1971 mentioned in the foregoing passage are as follows:
7.—(1) A commission may require any person by summons,
(a) to give evidence on oath or affirmation at an inquiry;
or
(b) to produce in evidence at an inquiry such documents and things as the commission may specify,
relevant to the subject matter of the inquiry and not inadmissible in evidence at the inquiry under section 11.
…
11. Nothing is admissible in evidence at an inquiry that would be inadmissible in a court by reason of any privilege under the law of evidence.
The law has recognized for many years the existence of a “police-informer” privilege. It was described by Lord Esher in the leading case of Marks v. Beyfus at p. 498 as being a rule of public policy that is not a matter of discretion: “it is a rule of law, and as such should be applied by the judge at the trial, who shall not treat it as a matter of discretion whether he should tell the
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witness to answer or not.”
Similarly, Lord Diplock in the case of D. v. National Society for the Prevention of Cruelty to Children, hereinafter referred to as the N.S.P.C.C. case, at p. 218, referred to “the well established rule of law that the identity of police informers may not be disclosed in a civil action, whether by process of discovery or by oral evidence at the trial”. He cited Marks v. Beyfus.
The existence of the rule was recognized as early as 1794 in The Trial of Thomas Hardy for Treason. During the trial the issue arose as to the disclosure of the identity of an informer. Lord Chief Justice Eyre said at p. 816:
My apprehension is, that among those questions which are not permitted to be asked, are all those questions which tend to the discovery of the channels by whom the disclosure was made to the officers of justice; that it is upon the general principle of the convenience of public justice not to be disclosed; that all persons in that situation are protected from the discovery…
At p. 819 Mr. Justice Grose said:
In this case, it seems to me, that we all agree about the principle, the question is, who is right in the application of that principle; for we do most perfectly agree in this principle, that the name of the informer is not to be disclosed: that is the law stated; that is the law agreed and argued upon by the counsel on both sides.
This rule of law was followed in R. v. Watson at p. 101 and in R. v. O’Connor at p. 1050. In Attorney-General v. Briant, Pollock C.B. was faced with the issue of whether a witness could be asked if he was himself the informer. At p. 274, Pollock C.B. resolved the issue in the following terms:
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There is no direct authority either way; but the rule clearly established and acted on is this, that in a public prosecution a witness cannot be asked such questions as will disclose the informer, if he be a third person. This has been a settled rule for fifty years; and although it may seem hard in a particular case, private mischief must give way to public convenience. That is the ground on which the decision took place in Hardy’s case and in Watsons case; and, we think, the principle of the rule applies to a case where the witness is asked, if he himself is the informer; and, therefore, that the question could not be asked, and that the rule must be discharged.
The issue of disclosure had arisen in these cases in the course of a public prosecution. In Marks v. Beyfus the court was considering a civil claim for damages for malicious conspiracy to prosecute the plaintiff. The plaintiff called as a witness the Director of Public Prosecutions who testified that a statement in writing had been supplied to him. He declined to give the name of the informant or to produce the written statement. The trial judge refused to order him to answer the question or to produce the statement. On appeal, the plaintiff contended that the prosecution was a private prosecution and argued that the ruling was erroneous. The ruling was upheld by the Court of Appeal. Lord Esher said at pp. 498-99:
Now, this rule as to public prosecutions was founded on grounds of public policy, and if this prosecution was a public prosecution the rule attaches; I think it was a public prosecution, and that the rule applies. I do not say it is a rule which can never be departed from; if upon the trial of a prisoner the judge should be of opinion that the disclosure of the name of the informant is necessary or right 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 that must prevail. But except in that case, this rule of public policy is not a matter of discretion; it is a rule of law, and as such should be applied by the judge at the trial, who should not treat it as a matter of discretion whether he should tell the witness to answer or not. The learned judge was, therefore, perfectly right in the present case in applying
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the law, and in declining to let the witness answer the questions. The result of his so deciding was, of course, that the plaintiffs cause of action, which was founded on the alleged instigation of the Director of Public Prosecutions by the defendants, failed, for there was no evidence of any such instigation.
I may add that the rule as to non-disclosure of informers applies, in my opinion, not only to the trial of the prisoner, but also to a subsequent civil action between the parties on the ground that the criminal prosecution was maliciously instituted or brought about.
In Humphrey v. Archibald, the Ontario Court of Appeal adopted Marks v. Beyfus. Burton J.A. made the following comments at pp. 269-70:
A good deal of confusion, I think, arises from treating the refusal as the privilege of the witness whereas it is not so, but is adopted on the grounds of public policy on account of its importance to the public. “It is observed by Courts of Justice on a principle of public policy and from regard to public interest.”
We have no such thing in this country as private prosecutions for crimes of the nature charged in this case.
Mr. Phillips, I think, in his work (Vol. 1, p. 133) correctly lays down the rule thus: “The discovery of truth in inquiries necessary for the administration of criminal justice ** may nevertheless be counterbalanced by serious inconveniences from disclosures prejudicial to public interests, and the danger of such disclosures has been deemed, in particular instances, an adequate ground for the exclusion of evidence. Witnesses are not to be examined respecting information given by them to Government for the discovery of offenders against the law. The names of persons who are the channels by which detection is made are not to be disclosed.”
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
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that case this rule of public policy is not a matter of discretion.
It is a rule of law and as such should be applied by the Judge at the trial who should not treat it as a matter of discretion whether he should tell the witness to answer or not.
I do not agree with the suggestion that the police-informer rule, which has been stated to be a rule of law, should be limited in its application to criminal prosecutions and civil proceedings founded upon malicious prosecutions. If it is applicable in civil proceedings arising out of a malicious prosecution, there is no logical reason why it should not also be applicable in other civil proceedings. The public policy which gave rise to the rule is the same, no matter what form the civil proceedings take.
I do not interpret the words of Lord Esher in Marks v. Beyfus when he said that the rule should be applied in a civil action founded on the malicious institution of a criminal prosecution as meaning that it would be inapplicable in other civil proceedings. His statement related to the nature of the case which was before him and he did not need to go further than he did. In this connection, I agree with Lord Diplock’s statement in the N.S.P.C.C. case at p. 220:
My Lords, the maxim expressio unius, exclusio alterius is not a canon of construction that is applicable to judgments. To construe a judgment as if its function were to lay down a code of law is a common error into which the English reliance upon precedent makes it easy to fall. A cautious judge expresses a proposition of law in terms that are wide enough to cover the issue in the case under consideration; the fact that they are not also wide enough to cover an issue that may arise in some subsequent case does not make his judgment an authority against any wider proposition.
The judgment of the House of Lords in that case establishes that the rule that the identity of police informers may not be disclosed applies in civil actions. I have already cited earlier in these reasons Lord Diplock’s statement to that effect.
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The facts in that case were as follows. The N.S.P.C.C. is a voluntary society, founded in 1889 and incorporated by Royal Charter in 1895. Its objects included the prevention of public and private wrongs of children and the enforcement of laws for their protection. In carrying out its purposes, it solicited help from the public to advise its officers about children who might be suffering from neglect or ill-treatment. The public was advised that the names of informants and the information given to the society would be confidential.
The enforcement of laws for the protection of children may take two forms: (a) prosecution of criminal charges for offences against children, and (b) the institution of care proceedings in a juvenile court. Care proceedings may only be brought by a local authority, a constable or an “authorized person”. The N.S.P.C.C. was an authorized person and, in fact, the only authorized person at the time.
Some person told the N.S.P.C.C. that the plaintiff’s fourteen month old daughter had been beaten and ill-treated over a period of six weeks. On receipt of this information, the N.S.P.C.C. sent an inspector to call on the plaintiff at her home to inspect the child. The information proved to be untrue. The child was healthy and well cared for. The plaintiff was very upset by this visit and her health was adversely affected by the shock.
The plaintiff tried without success to discover the identity of the informant. The N.S.P.C.C. refused to reveal it. The plaintiff sued the N.S.P.C.C. alleging negligence in failing properly to investigate the complaint. She also sought disclosure of all documents relating to the complaint and the identity of the complainant. The N.S.P.C.C. applied for an order that there should be no discovery or inspection of any documents which might reveal the identity of the complainant.
The Master ordered disclosure. This decision was reversed by the judge in chambers. An appeal
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from this judgment to the Court of Appeal succeeded, with Lord Denning, M.R., dissenting. An appeal to the House of Lords was allowed in a unanimous decision.
The opinion of the majority in the Court of Appeal was that public policy did not protect the N.S.P.C.C. because it was not a department of central government and because the courts did not enforce a promise of confidentiality in the circumstances. Lord Denning, in his dissenting reasons, said that it was a matter of balancing the competing interests. After reviewing the matter, he concluded that the name should not be disclosed, expressing agreement [at p. 192] with the judge in chambers who had said:
“When one looks at the duty which has been laid by Parliament on the defendants, and bears in mind the great public interest that children should not be neglected or ill-treated, in my mind there is no doubt at all that the public interest in protecting the defendants’ sources of information overrides the public interest that [the mother] should obtain the information she is seeking in order to obtain legal redress.”
Four of the five Law Lords reached their decision on a different ground. Their view was that a similar immunity from disclosure of identity in civil proceedings should be extended to those who give information about neglect or ill-treatment of children to a local authority or the N.S.P.C.C. as is accorded to police informers, the public interests served by preserving the anonymity of both classes of informants being analogous.
The following passages from the judgment of Lord Diplock, at pp. 218 and 219, show that the rule as to non-disclosure of the identity of a police informer is an established rule of law:
The public interest which the N.S.P.C.C. relies upon as obliging it to withhold from the plaintiff and from the court itself material that could disclose the identity of the society’s informant is analogous to the public interest that is protected by the well established rule of law that the identity of police informers may not be disclosed in a civil action, whether by the process of discovery or by oral evidence at the trial: Marks v. Beyfus (1890) 25 Q.B.D. 494.
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The rationale of the rule as it applies to police informers is plain. If their identity were liable to be disclosed in a court of law, these sources of information would dry up and the police would be hindered in their duty of preventing and detecting crime. So the public interest in preserving the anonymity of police informers had to be weighed against the public interest that information which might assist a judicial tribunal to ascertain facts relevant to an issue upon which it is required to adjudicate should be withheld from that tribunal. By the uniform practice of the judges which by the time of Marks v. Beyfus, 25 Q.B.D. 494 had already hardened into a rule of law, the balance has fallen upon the side of non-disclosure except where upon the trial of a defendant for a criminal offence disclosure of the identity of the informer could help to show that the defendant was innocent of the offence. In that case, and in that case only, the balance falls upon the side of disclosure.
…
For my part I would uphold the decision of Croom-Johnson J. and reverse that of the Court of Appeal. I would do so upon what in argument has been referred to as the “narrow” submission made on behalf of the N.S.P.C.C. I would extend to those who give information about neglect or ill-treatment of children to a local authority or the N.S.P.C.C. a similar immunity from disclosure of their identity in legal proceedings to that which the law accords to police informers. The public interests served by preserving the anonymity of both classes of informants are analogous; they are of no less weight in the case of the former than in that of the latter case, and in my judgment are of greater weight than in the case of informers of the Gaming Board to whom immunity from disclosure of their identity has recently been extended by this House.
(The case to which Lord Diplock refers is Rogers v. Home Secretary. In that case proceedings for criminal libel had been commenced by Rogers in respect of a letter written by the Assistant Chief Constable to the Gaming Board in connection with an application made by Rogers to the Gaming Board for a licence under the Gaming Act, 1968. Rogers sought production of the letter and other documents, but the witness summonses to require their production were set aside.)
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Lord Hailsham of St. Marylebone, with whom Lord Kilbrandon agreed, said, in the N.S.P.C.C. case, at p. 229:
Of the three classes with locus standi to initiate care proceedings, it is common ground that information given to the police is protected to the extent demanded by the society. This is clear from many cases including Marks v. Beyfus, 25 Q.B.D. 494 (which applied the principle to the Director of Public Prosecutions), and many of the recent cases in your Lordships’ House. The rule relating to the immunity accorded to police informants is in truth much older, so old and so well established, in fact, that it was not and could not be challenged in the instant case before your Lordships. Once, however, it is accepted that information given to the police in the instant case would have been protected, it becomes, in my judgment, manifestly absurd that it should not be accorded equally to the same information if given by the same informant to the local authority (who would have been under a duty to act on it) or to the appellant society, to whom, according to the undisputed evidence, ordinary informants more readily resort.
Lord Simon of Glaisdale said at p. 232:
Then the law proceeds to recognise that the public interest in the administration of justice is one facet only of larger public interest—namely, the maintenance of the Queen’s peace. Another facet is effective policing. But the police can function effectively only if they receive a flow of intelligence about planned crime or its perpetrators. Such intelligence will not be forthcoming unless informants are assured that their identity will not be divulged: see Lord Reid in Conway v. Rimmer [1968] A.C. 910, 953G-954A. The law therefore recognises here another class of relevant evidence which may—indeed, must—be withheld from forensic investigation—namely, sources of public information: Rex v. Hardy (1794) 24 State Tr. 199, 808; Hennessy v. Wright, 21 Q.B.D. 509, 519; Marks v. Beyfus, 25 Q.B.D. 494.
These statements give clear recognition to the existence of an established rule of law, for the purpose of effective policing, which recognizes that sources of police information must be withheld from forensic investigation.
The police-informer privilege was recognized by Lacourciere J.A., who delivered the majority opin-
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ion in Reference re Legislative Privilege, which was concerned with the privilege of a member of the Legislature in relation to communications made to him. In discussing common law privilege, he said, at p. 234:
An extension of the so-called Crown privilege has been accorded, in the public interest, to protect from disclosure the identity of police informers. The rationale for this extension was clearly the importance to the public of the detection of crimes, and the necessity of preserving the anonymity of police informers to maintain the sources of information. This necessity has generally outweighed the public interest of full disclosure of relevant facts to the adjudicating tribunal. This privilege, however, is not absolute and is subject to one important exception, stated by Lord Diplock in D. v. N.S.P.C.C, supra, at p. 207:
By the uniform practice of the judges which by the time of Marks v. Beyfus, 25 Q.B.D. 494 had already hardened into a rule of law, the balance has fallen upon the side of non-disclosure except where upon the trial of a defendant for a criminal offence disclosure of the identity of the informer could help to show that the defendant was innocent of the offence. In that case, and in that case only, the balance falls upon the side of disclosure.
The House of Lords in D. v. N.S.P.C.C., supra, extended the protection for the non‑disclosure of police informants to protect the identity of an informant to the National Society for the Prevention of Cruelty to Children.
In the N.S.P.C.C. case all of the four Law Lords whom I have mentioned were of the view that had the information which was given to the N.S.P.C.C. been given to a constable he could not be required to disclose the identity of the informant. The proceedings in question were civil proceedings and not related to any criminal prosecution. In my opinion, the immunity from disclosure which is accorded in relation to information furnished to the police in the course of the performance of their duties is general in its scope. This has become recognized as a rule of law with only one recognized exception, namely, that referred to by Lord Diplock in the message from his reasons cited by Lacourciere J.A. above.
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The foundation for the existence of this rule of law, which evolved in respect of the field of criminal investigation, is even stronger in relation to the function of the police in protecting national security. A large number of the instances in which, in the present case, it was sought to obtain from the police the names of their informants concerned police investigation into potential violence against officers of the state, including heads of state. These investigations were admittedly proper police functions. The rule of law which protects against the disclosure of informants in the police investigation of crime has even greater justification in relation to the protection of national security against violence and terrorism.
The position taken by Dubin J.A., who delivered the reasons of the majority in the present case, was as follows:
However, in no case, which I am aware of, has the police-informer privilege been extended to a case where the informer is in turn under a legal duty not to disclose the information to the police, or anyone else, and where the information has been obtained in breach of such duty. Nor am I aware of any case where the privilege has been extended in a manner which would frustrate a duly constituted tribunal, directed to inquire into the breaches of such duty, from fulfilling its mandate.
With respect to medical doctors, the statement that there is a legal duty not to disclose information to the police, or others, is based upon a regulation enacted by the Council of the College of Physicians and Surgeons (O. Reg. 577/75) pursuant to the authority of s. 50 of The Health Disciplines Act, 1974, 1974 (Ont.), c. 74, which, in defining the phrase “professional misconduct” in s. 26, included in subs. 21:
26. …
21. giving information concerning a patient’s condition or any professional services performed for a patient to any person other than the patient without the consent of the patient unless required to do so by law;
In respect of hospital employees, reliance was placed on Regulation 729, R.R.O. 1970, enacted pursuant to The Public Hospitals Act, R.S.O.
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1970, c. 378. Section 48 of the. Regulation states that a hospital board (subject to certain exceptions) shall not permit any person to remove, inspect or receive information from a hospital record. This provision relates only to the board and not to employees of the board.
These provisions do not impose a legal duty not to communicate information regarding a patient to the police. The medical doctor who does so may be guilty of professional misconduct. If so, he may become subject to the disciplinary procedures provided in the Act. The hospital employee is not subject to any statutory penalties.
In substance then, the position taken by the majority in the Court is that the police-informer privilege does not apply if the informant has communicated information which he should not have given. With respect, in my opinion, the answer to this is that the privilege in question is not given to the informer and, therefore, misconduct on his part does not destroy the privilege. The privilege is that of the Crown, which is in receipt of information under an assurance of confidentiality. The existence of the privilege is not to be determined by the nature of the conduct of the informer. As Lord Simon of Glaisdale said in the N.S.P.C.C. case at p. 233, “the rule can operate to the advantage of the untruthful or malicious or revengeful or self‑interested or even demented police informant as much as of one who brings information from a high-minded sense of civil duty. Experience seems to have shown that though the resulting immunity from disclosure can be abused the balance of public advantage lies in generally respecting it”.
The informant in the N.S.P.C.C. case was under a legal duty not to publish defamatory material concerning the plaintiff. In the light of the facts disclosed, the informant to the N.S.P.C.C. did publish defamatory material. Nonetheless, the N.S.P.C.C., on the analogy of the police-informer privilege, was not compelled by the court to breach the assurance of confidentiality which had been given to the informant. Public policy required that the N.S.P.C.C., in order to carry out its objects, be
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enabled to obtain information from any source under an assurance of confidentiality.
In my opinion the statutory provisions to which I have referred do not preclude the right of the Crown to resist compulsion to disclose the names of its informants to whom an assurance of confidentiality has been given.
In the present case, the identity of the public informers is being sought, not by an accused person or a litigant in civil proceedings, but is being sought by the tribunal itself which summoned the police witnesses in order to obtain, such disclosure but, in my opinion, the fact that it is the tribunal itself which seeks the information does not affect the application of the rule. The Public Inquiries Act, 1971 does not confer on the Commissioner any wider powers than those which may be exercised, on application of a party, by a judge conducting judicial proceedings. The police-informer privilege is not in any way diminished by any provision of The Public Inquiries Act, 1971. On the contrary, s. 11 of the Act specifically provides that nothing is admissible in evidence at any inquiry that would be inadmissible in a court by reason of any privilege under the law of evidence.
I would allow the appeal and set aside the judgment of the Court of Appeal. I would answer each of the questions in the stated case in the negative and would answer the second question posed in the amended order of Mclntyre J. in the affirmative. I would make no order as to costs.
Appeal allowed, LASKIN C.J. and DICKSON J. dissenting.
Solicitor for the appellants: R. Tassé, Ottawa.
Solicitors for the interveners Superintendent Donald Heaton and Chief Superintendent Michael Spooner: Carter & Powell, Toronto.
Solicitor for the respondent the Royal Commission of Inquiry into the Confidentiality of Health Records in Ontario: Harvey T. Strosberg, Toronto.
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Solicitor for the respondent the Canadian Civil Liberties Association: Mary E. Eberts, Toronto.
Solicitor for the intervener the Attorney General for Ontario: H. Allan Leal, Toronto.
Solicitors for the intervener the Attorney General of Quebec: Henri Brun, Michel Decary and Karl Delwaide, Sainte-Foy.
Solicitors for the intervener the Attorney General for New Brunswick: H. Hazen Strange and Patricia L. Cumming, Fredericton.
Solicitors for the intervener the Attorney General of British Columbia: Louis F. Lindholm and Brian Barrington-Foote, Victoria.
Solicitor for the intervener the Attorney General for Alberta: William Henkel, Edmonton.
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