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