





CITATION:
Abou-Elmaati v. Canada (Attorney
          General), 2011 ONCA 95



DATE: 20110207



DOCKET: C52120



COURT OF APPEAL FOR ONTARIO



Sharpe, Watt and Karakatsanis JJ.A.



BETWEEN



Ahmad
          Abou-Elmaati, Badr Abou-Elmaati, Samira Al-Shallash and Rasha Abou-Elmaati

Plaintiffs (Respondents/Appellants
          on Cross-Appeal)




and



The Attorney General of Canada
, John Doe and
          Jane Doe



Defendant (Appellant/Respondent
          on Cross-Appeal)




Robert MacKinnon and Zoe Oxaal, for the appellant

M. Philip Tunley and Andrea Gonsalves, for the respondents



Heard: December 14, 2010



On appeal from the
          order of Justice P.M. Perell of the Superior Court of Justice dated April 8,
          2010, with reasons reported at 101 O.R. (3d) 424.



Sharpe J.A.:



[1]

This appeal arises from civil actions brought in the
    Superior Court against Canada by individuals who allege that Canada was
    complicit in their torture and ill-treatment while they were in the custody of
    foreign governments and that their rights under the
Canadian Charter of Rights and Freedoms
were violated.  The issue is whether s. 38 of the
Canada Evidence Act
, R.S.C. 1985, c. C-5
    (
CEA
), conferring exclusive
    jurisdiction on the Federal Court of Canada to review and rule on Canadas
    claims for privilege on the grounds of national security, national defence and
    international relations, is constitutionally infirm on the ground that it interferes
    with the core jurisdiction of the Superior Court, protected by the
Constitution Act, 1867
, s. 96.

Facts

[2]

In 2006, the respondent Elmaati and members of his
    family commenced an action against Canada, claiming, among other things,
    compensatory damages for alleged breaches of his
Charter
rights.

[3]

Canada disclosed to the respondents counsel
    approximately 500 documents, of which 290 were in redacted form.  Some of the redactions were made pursuant to
    s. 38 of the
CEA
on the grounds that
    the excluded information was injurious to national security, national defence
    and international relations.  Canada
    later asserted that it had inadvertently disclosed one document without
    redactions, gave notice under s. 38 not to disclose the document, and asked the
    respondents counsel to return it.  The
    respondents counsel disputed that the document had been disclosed
    inadvertently and that it was subject to privilege and asserted that the s. 38
    notice was void.

[4]

The respondents moved in the Superior Court action for
    an order requiring production of documents without redaction and filed a Notice
    of Constitutional Question putting in issue the constitutional validity or
    applicability of s. 38 of the
CEA
.  Canada raised a preliminary objection to the
    respondents production motion, arguing that s. 38 deprived the Superior
    Court of jurisdiction to entertain the motion, and brought a Federal Court
    application to determine the claims of privilege pursuant to s. 38.

Reasons of the motion judge

[5]

The motion judge upheld Canadas preliminary objection
    and dismissed the respondents motion for production.  He held that s. 38 is constitutionally valid
    to the extent that it confers exclusive jurisdiction on the Federal Court to
    determine claims of privilege on grounds of national security, national
    defence, and international relations at the pre-trial stage.

[6]

However, the motion judge went on to declare that where
    a claim is made to enforce the constitution

(including the
Charter
) in a civil proceeding, to the extent that s. 38 precludes a judge of the
    Superior Court of Justice at the trial of an action or the hearing of an
    application from judicially reviewing a claim of Crown privilege, it is of no
    force or effect and must be read down accordingly.

Proceedings
    in the Federal Court

[7]

Pending this appeal, Canada proceeded with its s. 38
    application in the Federal Court to determine the privilege issues in relation
    to the respondents request for pre-trial production.  On November 8, 2010, Mosley J. delivered
    comprehensive reasons dealing with Canadas s. 38 claims of privilege:
Canada (A.G.) v. Almaki
, 2010 FC 1106. Mosley
    J. upheld some of Canadas s. 38 claims but rejected many others.

[8]

Mosley J. also dealt with the allegedly inadvertently
    disclosed document. He held that disclosure of this document was the product of
    a series of errors in the internal government review and redaction process and
    that as the disclosure was not deliberate, there was no waiver of the claimed
    privilege.  He upheld the claims of
    privilege with respect to certain redacted parts of the document but rejected
    claims of privilege with respect to other parts.

[9]

The respondents appear not to take issue with Mosley
    J.s order and they have not exercised their right of appeal to the Federal
    Court of Appeal.

Appeal
    and Cross-Appeal

[10]

Canada appeals the declaration that s. 38 is of no
    force or effect to the extent that it deprives a Superior Court judge of the
    jurisdiction to review a claim of Crown privilege based on
national security, national defence, and international relations
    at trial.  The respondents cross-appeal
    the dismissal of their motion for production and the motion judges
    determination that s. 38 is valid at the pre-trial stage.
Canada moves to quash the cross-appeal
    with respect to the allegedly inadvertently disclosed document.

Issues

[11]

The issues arising on the appeal and cross-appeal are:

1.

Did
    the motion judge err in dismissing the respondents pre-trial motion for
    production and upholding the constitutional validity of s. 38 at the pre-trial
    stage?

2.

Did
    the motion judge err in declaring that s. 38 was of no force or effect to the
    extent that it deprived the Superior Court of the power to decide claims of
    privilege based on
national security, national
    defence, and international relations at a trial involving a claim to enforce
    the constitution, including

the
Charter
at trial?

3.

Should
    the cross-appeal with respect to the allegedly inadvertently disclosed document
    be quashed or dismissed?

Analysis

1.   Did the
    motion judge err in dismissing the respondents motion for production and
    upholding the constitutional validity of s. 38
at the
    pre-trial stage?

[12]

The motion that led to this appeal was one for
    pre-trial disclosure and I will deal first with the issue raised by the
    respondents cross-appeal.

[13]

The respondents do not dispute that s. 38 confers
    jurisdiction on the Federal Court to determine the public interest immunity
    claims asserted by Canada in this proceeding. However, the respondents assert
    that s. 38 is constitutionally infirm insofar as it deprives the Superior Court
    of jurisdiction to assess and determine those same claims.  To succeed in that assertion, the respondents
    must demonstrate that s. 38 violates the Superior Courts jurisdiction that is constitutionally
    protected by s. 96.

[14]

In
Reference re Amendments to the Residential
    Tenancies Act (N.S.)
, [1996] 1 S.C.R. 186 at para. 74, McLachlin J.
    re-stated as follows the three-part test for determining whether the conferral
    of jurisdiction on an inferior court or administrative tribunal deprives a s.
    96 court of its constitutionally protected jurisdiction, initially laid down by
    Dickson J. in
Re Residential Tenancies
    Act, 1979
, [1981] 1 S.C.R. 714 at pp. 734-735:

(1) does the power conferred
    "broadly conform" to a power or jurisdiction exercised by a superior,
    district or county court at the time of Confederation? (2) if so, is it a
    judicial power? (3) if so, is the power either subsidiary or ancillary to a predominantly
    administrative function or necessarily incidental to such a function?

[15]

McEvoy v. New Brunswick
    (A.G.)
, [1983] 1 S.C.R. 704 holds that s. 96 applies to limit
    Parliament as well as the provincial legislatures from removing or devolving
    protected powers to tribunals or statutory courts.

[16]

It is common ground that this case falls to be decided
    on the first branch of the
Residential
    Tenancies
test.  In
MacMillan Bloedel Ltd. v. Simpson,
[1995]
    4 S.C.R. 725 at para. 15, the first branch was refined to relate to what Lamer
    C.J. described as the core or inherent jurisdiction which is integral to their
    operations.  If the power or
    jurisdiction at issue falls within that core, it cannot be removed from the
    superior courts by either level of government, without amending the
    Constitution.

[17]

The question, then, is this: was the power or
    jurisdiction to review claims of Crown privilege on grounds of international
    relations, national defence and national security exercised by superior,
    district or county courts at the time of Confederation and was that power or
    jurisdiction essential to the existence of a superior court of inherent
    jurisdiction and to the preservation of its foundational role within our legal
    system?

[18]

As the motion judge held, at para. 99, there is a long
    line of authority to the effect that at common law, there was no pre-trial
    discovery against the Crown:
Tomline v. The Queen
(1879), 4 Ex. D. 252;
Quebec
    (A.G.)

and

Keable v.
    Canada (A.G.)
, [1979] 1 S.C.R. 218 at pp. 245-246;
Waverley
    (Village) v. Nova Scotia (Acting Minister of Municipal Affairs)
(1993), 16
    C.P.C. (3d) 64 (N.S.S.C.) at paras. 33-40;
Crombie v. The King
(1922),
    52 O.L.R. 72 (C.A.) at p. 77. As no discovery of any kind was available against
    the Crown at the time of Confederation, the issue of public interest privilege
    could not have arisen until legislation enacted in the 1950s made discovery
    against the Crown in right of Canada possible (
Crown Liability Act
, S.C. 1952-1953, c. 30, s. 14;
Crown Liability (Provincial Court)
    Regulations
, P.C. 1954-1687, ss. 7-8;  Peter W. Hogg & Patrick J. Monahan,
Liability of the Crown
, 3d ed.
    (Scarborough: Thomson Canada, 2000) at pp. 65-66).

[19]

After it became possible to obtain discovery
    against the Crown, the courts adopted a highly deferential approach to claims
    of Crown privilege.  In particular,
    deference to ministerial claims of privilege on grounds of national security
    was absolute.  In
Conway v. Rimmer
, [1968] 1 All E.R. 874 (H.L.), Lord Morris stated
    at p. 890: If a responsible Minister stated that production of a document
    would jeopardise public safety, it is inconceivable that any court would make
    an order for its production.  See also
Council of Civil Service Unions v. Minister for
    the Civil Service
, [1984] 3 All E.R. 935 (H.L.) at p. 944: the judicial
    process is unsuitable for reaching decisions on national security; and at p.
    952: National security is the responsibility of the executive government....It
    is par excellence a non-justiciable question.
Carey v. Ontario
, [1986] 2
    S.C.R. 637 adopted a liberal approach to Ontarios common law regime and held
    that where class privilege was claimed over cabinet deliberations, courts must
    weigh the public interest in non-disclosure
against the
    public interest in the proper administration of justice.  The court could inspect the documents, balance
    the competing interests, and where appropriate, order their production.  However, LaForest J. pointed out, at p. 671,
    that a more deferential approach pertained where privilege was claimed on
    grounds of national security:

If the certificate had particularized that their divulgence should be
    withheld on the ground, for example, that they relate or would affect such
    matters as national security or diplomatic relations, that would be another
    matter. If the certificate was properly framed, the court might in such a case
    well agree to their being withheld even without inspection.... For on such
    issues, it is often unwise even for members of the judiciary to be aware of
    their contents, and the period in which they should remain secret may be very
    long. [Citation omitted.]

[20]

In 1970, the common law relating to claims by the Crown
    in right of Canada to privilege in any court was codified by the
Federal Court Act
, s. 41, R.S.C. 1970,
    c. 10 (2nd Supp).  With respect to claims
    of Crown privilege, the court was permitted to examine documents and order
    disclosure if it concluded that the public interest in the proper
    administration of justice outweighed the claimed public interest.  However, s. 41(2) provided that where the claim
    was that the production or discovery of a document or its contents would be
    injurious to,
inter alia
,
    international relations, national defence or national security, discovery and
    production shall be refused without any examination of the document by the
    court.  This provision withstood a
    constitutional challenge in
Commission des droits de la personne v.
    Canada (A.G.)
, [1982] 1
    S.C.R. 215, although there the argument was based on division of powers rather
    than s. 96.  I note as well that in
Babcock v. Canada (
A.G.
), [2002] 3 S.C.R. 3, the
    Supreme Court held that s. 39 of the
CEA
,
    depriving any court of the power to review a claim of privilege in relation to
    confidences of the Privy Council, did not deprive a s. 96 court of its core
    jurisdiction as the provision did not alter or remove any jurisdiction that was
    exercised in 1867.

[21]

It was not until 1982 and the enactment of s. 36.2 of
    the
CEA
, the predecessor of the
    current s. 38, by S.C. 1980-81-82-83, c. 111, s. 4 that it became possible for
    a court to review a claim of Crown privilege based upon international
    relations, national defence or national security.  The 1982 amendment responded to a
    recommendation of the Commission of Inquiry Concerning Certain Activities of
    the Royal Canadian Mounted Police, chaired by Mr. Justice D.C. McDonald and
    commonly referred to as the McDonald Commission,

that there should be a more liberal approach to disclosure and
    that the task of assessing national security claims be assigned to the Federal
    Court.

As Canada points out in its submission, s. 38
    reflects a significant liberalization of the law of Crown privilege, allowing
    for a broad regime of judicial review, albeit within the exclusive jurisdiction
    of the Federal Court, with respect to privilege claims based on international
    relations and national defence or security.

[22]

The operation and effect of the scheme
    established by s. 38 for the determination of claims made by the Government of
    Canada for privilege based upon
national security,
    national defence, and international relations may be briefly described.

[23]

A person, usually a government official, involved in
    litigation is required to notify the Attorney General if asked to produce
    information sensitive or potentially injurious to national security, national
    defence or international relations.  The
    effect of that notice is to prohibit disclosure unless and until disclosure is
    authorized either by the Attorney General or by a judge of the Federal Court
    pursuant to the s. 38 scheme.

[24]

If the Attorney General does not authorize disclosure,
    the issue is resolved by the Federal Court, either on application by the
    Attorney General seeking to protect the information or by the party seeking
    disclosure. That application is decided by the Chief Justice of the Federal
    Court or a Federal Court judge designated to conduct s. 38 hearings.

[25]

The judge hearing the application decides whether a
    hearing is required, who should be given notice and who should be given the
    opportunity to make submissions. The judge has access to unredacted versions of
    the documents at issue but the party seeking disclosure has access only to the
    redacted version and the hearing is held
in
    camera
.  The Attorney General has the
    right to make
ex parte
submissions.

[26]

The designated judge may appoint
amicus curiae
and in this case, Mosley J. did appoint two
amicus
to assist him in the
    determination of the claim of privilege.

[27]

The designated judge also has the discretion to invite
    the comments of the person (usually a judge) presiding at the proceeding to
    which the information relates and that person may provide the designated judge
    with a report dealing with anything relating to the proceeding that might be of
    assistance to the designated judge.

[28]

A three-part test is applied to determine the s. 38
    application (see
Canada (A.G.) v. Ribic
,
    [2005] 1 F.C.R. 33 (F.C.A.) at paras. 17-22;
Canada (A.G.) v. Khawaja
, [2008] 4 F.C.R. 3 (F.C.A.) at para. 8):

1.

Is the information sought relevant to the proceeding? If no,
    disclosure is not ordered. If yes, then;

2.

Will disclosure of the information be injurious to national
    security, national defence or international relations? If no, the information
    should be disclosed. If yes, then;

3.

Does the public interest in disclosure outweigh the public
    interest in prohibiting disclosure?

[29]

The designated judge has the discretion to craft an
    appropriate order ordering partial disclosure, disclosure on conditions or
    disclosure of a summary of the information.

[30]

There is an appeal as of right to the Federal Court of
    Appeal and a further appeal, with leave, to the Supreme Court of Canada.

[31]

I assess the relevant historical context and the
    operation and effect of s. 38 as follows.  Pre-trial discovery was not available against
    the Crown at Confederation and even after discovery against the Crown was made
    possible by statute, claims of crown privilege based upon international
    relations, national security and national defence were effectively immune from
    judicial review or scrutiny.

[32]

I cannot accept the respondents contention that Canada
    is using s. 38 to be able to violate the Constitution with impunity.  Section 38 represents a liberalization of the
    law of Crown privilege, conferring rights of judicial review that were not
    available until the predecessor of s. 38 was enacted in 1982.  In this case, s. 38 has allowed the
    respondents to have a judicial assessment of Canadas public interest immunity
    claims, an assessment they appear to accept as having been thorough and fair
    and against which they have not exercised their right of appeal.  I note that Mosley J. specifically found, at
    para. 112:

There is no evidence in the
    record before me to support the respondents suggestion that the Attorney
    General has attempted to prevent disclosure of embarrassing information, or
    information unfavourable to the government's defence in the underlying civil
    action, through unwarranted national security claims.

[33]

Section 38 does not remove anything that falls within
    the core jurisdiction of the Superior Court and that is protected by s. 96.  To the contrary, s. 38 provides for a more
    generous form of judicial review  albeit in another court  of claims of crown
    privilege than was ever available in the Superior Court at common law.

[34]

I also agree with the motion judge that from the
    perspective of protecting the Superior Courts core jurisdiction, there is
    little or no practical difference between delegating issues of pre-trial
    production and disclosure to a Master and the regime that assigns that
    responsibility to the Federal Court.  Under
    either scheme, issues of production and disclosure are determined before the
    trial by a judicial officer other than the trial judge and the trial judge is
    left to decide the case on the merits on the basis of the record that has been
    defined and refined in the pre-trial procedure.

[35]

I therefore conclude under the first branch of the test
    for an infringement of s. 96 that in relation to pre-trial production and
    discovery, the jurisdiction that is conferred exclusively on the Federal Court
    by s. 38 did not fall within the power or jurisdiction exercised by the
    Superior Court at the time of Confederation.  It follows that in relation to pre-trial
    discovery, s. 38 does not deprive the Superior Court of the core jurisdiction
    protected by s. 96 of the
Constitution
    Act, 1867
.

2.   Did the motion judge err in declaring that s. 38 was of no force
    or effect to the extent that it deprived the Superior Court of the power to
    decide claims of privilege based on
national
    security, national defence, and international relations at a trial involving a
    claim to enforce the constitution, including the
Charter
?

[36]

The motion judge held that the Superior Courts civil
    jurisdiction to provide remedies for constitutional violations fell within the
    core jurisdiction protected by s. 96.  He
    held that it followed that at trial, the Superior Court must retain
    jurisdiction to rule on claims of privilege based upon national security,
    national defence and international relations and that to the extent s. 38
    provides otherwise, it is of no force or effect.

[37]

For the purposes of this appeal, I will assume, without
    deciding, that in relation to s. 96, the issue of the Superior Courts
    constitutionally-protected jurisdiction to provide remedies for constitutional
    violations at trial is distinguishable from the issue of pre-trial production
    and disclosure that I have just considered.

[38]

In my view, it was unnecessary for the motion judge to
    have ruled on this question in this case.  The record in this case deals only with pre-trial discovery.  In virtually all cases, issues of privilege
    will be resolved at the pre-trial discovery phase.  As the Federal Court has jurisdiction with
    respect to pre-trial claims of privilege and as the parties have the right to
    participate in the s. 38 proceeding before the Federal Court and to appeal any
    order to the Federal Court of Appeal, and may  apply for leave to appeal to the Supreme Court
    of Canada, the Federal Courts determination of the issue of privilege will
    amount to
res judicata
.  It is by no means clear exactly how or why
    privilege issues will arise that not were resolved at the pre-trial discovery
    phase of the action but that will have to be resolved at trial. The record does
    not provide a concrete factual basis for making an important constitutional
    ruling and neither the motion judge nor the respondents have provided us with
    hypothetical examples.

[39]

It is not only unnecessary but also usually unwise to
    attempt to decide constitutional issues in the absence of a concrete factual
    situation.  As this court stated in
Clark v. Peterborough Utilities Commission
(1998),
    40 O.R. (3d) 409 at p. 413, citing
Phillips
    v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy),
[1995] 2 S.C.R. 97
at p. 111, courts should only rule on constitutional issues when it is
    necessary to do so.

[40]

The present case is distinguishable from
R. v. Ahmad
(2009), 257 C.C.C. (3d) 135 (Ont. S.C.), leave to
    appeal to S.C.C. granted (
sub nom.

R. v. F.A.
), 33066 (18 June 2009), where
    Dawson J. held that s. 38 was of no force or effect to the extent that it vests
    exclusive jurisdiction in the Federal Court to determine privilege claims based
    upon international relations, national security and defence in respect of a
    criminal trial in the Superior Court.  First,
    that was a criminal case where such issues are not resolved before trial and
    the trial judge was confronted with a live dispute as to how and where claims
    of Crown privilege should be resolved.  Second,
    the argument that s. 38 was of no force or effect to the extent that it
    deprived the Superior Court of jurisdiction to determine claims of Crown
    privilege was based primarily on the accuseds right to a fair trial guaranteed
    by s. 7 of the
Charter
and, as Dawson
    J. specifically noted at para. 40, the accused did not rely on the
    jurisprudence surrounding s. 96 of the
Constitution
    Act, 1867
.

[41]

Here, the motion judge did not have a concrete factual
    situation giving rise to the issue and, in my respectful view, in the absence
    of a concrete case, he erred in declaring s. 38 to be of no force or effect in
    relation to privilege claims advanced at trial.

[42]

Accordingly, I would set aside that portion of the
    motion judges order and leave that issue to be decided if and when it arises
    upon a proper factual foundation where a litigant can present a concrete case
    that s. 38 interferes with the core jurisdiction of the Superior Court to
    remedy a breach of the constitution.

3.

Should the cross-appeal
    with respect to the allegedly inadvertently disclosed document be quashed or
    dismissed?

[43]

As I accept Canadas submission with respect to
    pre-trial production and disclosure, it follows that the issue of the allegedly
    inadvertently disclosed document was properly before Mosley J. in the s. 38
    proceedings.  Mosley J. dealt with the
    issues arising in connection with that document.  Accordingly, it not necessary for us to
    consider Canadas motion to quash the cross-appeal from that aspect of the
    motion judges order and I would simply dismiss that aspect of the
    cross-appeal.

Conclusion

Accordingly, I would
    allow Canadas appeal, set aside paragraph 2 of the motion judges order and dismiss
    the cross-appeal.

[44]

If the parties are unable to agree as to the costs of
    the appeal, they make brief written submissions. Canada shall submit its
    submissions within 15 days of the release of this judgment and the respondents
    are to submit their submissions within ten days thereafter.

Robert J. Sharpe J.A.

I agree David Watt
    J.A.

I agree A.
    Karakatsanis J.A.

RELEASED:  February 7,
    2011


