Judgments

     DES-2-99

Jaggi Singh (Applicant)

v.

The Attorney General of Canada (Respondent)

     T-659-99

Craig Elton Jones, Jonathan Oppenheim, Jamie Doucette, Deke Samchok, Denis Porter and Annette Muttray (Plaintiffs)

v.

Her Majesty the Queen, the Minister of Justice and the Attorney General of Canada (Defendants)

Indexed as: Singhv. Canada (Attorney General) (T.D.)

Trial Division, McKeown J."Vancouver, May 17, 18 and 19; Toronto, June 25, 1999.

Constitutional law — Fundamental principles — Objection to disclosure of information pursuant to Canada Evidence Act, ss. 38(6), 39 — S. 38(6) permitting ex parte objections to disclosure of information relating to national security — S. 39 providing where Clerk of Privy Council objecting to disclosure of information, disclosure shall be refused without judicial examination — Applicants submitting s. 39 unconstitutional as contrary to largely unwritten fundamental, organizing principles of Constitution i.e. separation of powers, independence of judiciary, rule of law — Unwritten constitutional norms may be used to fill gap in express terms of constitutional text, or as interpretative tools where section of Constitution not clear — Principles of judicial review not enabling Court to strike down legislation in absence of express provision of Constitution contravened by legislation — Requisite express constitutional provision not existing herein — No gap in Constitution to be filled — Largely unwritten constitutional norms not sufficient to invalidate otherwise properly enacted legislation — Applicants argued by giving executive judicial function (discretion to determine whether relevant evidence should be disclosed), s. 39 offending doctrine of separation of powers — S.C.C. holding Parliament can confer legal functions on courts, certain judicial functions on bodies not courts — Therefore Parliament can confer judicial powers on executive — S. 39 not immunizing executive decisions (to exempt Cabinet documents from disclosure) from judicial review on jurisdictional grounds — S. 39 not contrary to Constitution Act, 1867, s. 96 — Implied doctrine of separation of powers not recognized in Canadian Constitution, cannot be used to strike down intra vires legislation not contrary to Charter — S. 39 not contravening independence of judiciary — No breach of rule of law — Rule of law cannot strike down legislation — Parliament, not courts, free to review Crown's rights, privileges — S. 39 privilege given to executive in legislation enacted by Parliament — Statute law may modify, rather than declare, common law — Parliament's failure to amend s. 39 in light of Carey v. Ontario, setting out common law principles of executive privilege, indicative of unwillingness to modify law.

Judges and Courts — Judicial independence — Judicial review challenging objection to disclosure of information pursuant to Canada Evidence Act, ss. 38(6), 39 — S. 38(6) permitting ex parte objections to disclosure of information relating to national security — S. 39 providing where Clerk of Privy Council objecting to disclosure of information, disclosure shall be refused without judicial examination — Applicants submitting s. 39 contrary to largely unwritten, fundamental organizing principles of Constitution including independence of judiciary — Characteristics of judicial independence: security of tenure, financial security, administrative independence — Canada Evidence Act, s. 39 not affecting security of tenure, financial security — If administrative independence defined as control by courts over administrative decisions bearing directly, immediately on exercise of judicial function, s. 39 not contravening independence of judiciary as constitutional norm — S. 38(6) not affecting —administrative independence— of judiciary — Applicants' submission s. 38(6) eliminating judicial discretion to decide whether to allow ex parte submissions cannot be maintained given two-stage hearing implemented by Federal Court which, in some cases, eliminates need for ex parte submissions.

Evidence — Canada Evidence Act, s. 39, providing where Clerk of Privy Council objecting to disclosure of information, disclosure shall be refused without judicial examination — Applicants submitting s. 39 unconstitutional as contrary to unwritten, fundamental principles of Constitution i.e. separation of powers, independence of judiciary, rule of law — Unwritten constitutional norms may be used to fill gap in express terms of constitutional text or used as interpretative tools where section of constitution not clear — But principles of judicial review not enabling Court to strike down legislation in absence of express provision of Constitution contravened by legislation in question — Requisite express constitutional provision not existing herein — No gap in Constitution to be filled — Largely unwritten constitutional norms not sufficient to invalidate otherwise properly enacted legislation — S. 39 not breaching separation of powers, independence of judiciary, rule of law.

RCMP — Judicial review of objections to disclosure of information relevant to enquiry of RCMP Public Complaints Commission into conduct of RCMP members in performance of duties during APEC Conference at Vancouver in November, 1997 — Constitutionality of Canada Evidence Act, ss. 38(6) (permitting ex parte objections to disclosure), 39 (where Clerk of Privy Council objecting to disclosure of information, disclosure shall be refused without judicial examination) confirmed — Though Commission claims jurisdiction to make findings regarding improper orders by executive, inquiry concerns conduct of RCMP officers.

This was an application challenging, on constitution grounds, objections to the disclosure of information relevant to the public enquiry by the RCMP Public Complaints Commission into complaints concerning the conduct of RCMP members in the performance of their duties during the Asia Pacific Economic Cooperation (APEC) Conference at Vancouver in November, 1997. The Commission requested the Government of Canada to disclose all government records relevant to the hearing. In a series of certificates, a number of government officials objected to the disclosure of numerous documents pursuant to Canada Evidence Act, sections 37 and 38. The Clerk of the Privy Council also objected to the disclosure of government records by certifying pursuant to subsection 39(1) that the records contained confidences of the Queen's Privy Council for Canada. Subsection 38(6) permits ex parte objections relating to national security. Section 39 provides that where the Clerk of the Privy Council objects to the disclosure of information before a body with jurisdiction to compel production of information, disclosure shall be refused without examination.

The issue was whether Canada Evidence Act, subsection 38(6) and section 39 are ultra vires Parliament on the ground that they are inconsistent with the Constitution of Canada, including the preamble to the Constitution Act, 1867 and the largely unwritten fundamental and organizing principles of the Constitution, i.e. the separation of powers, the independence of the judiciary and the rule of law.

Held, the application should be dismissed.

Commission des droits de la personne v. Attorney General of Canada et al. (the Quebec Human Rights case) held that Federal Court Act, subsection 41(2), the predecessor of Canada Evidence Act, section 39 was constitutional. Normally, that decision would be dispositive of this case. But the applicants submitted that this decision pre-dated the coming into effect of the Charter and has been overtaken by three more recent Supreme Court of Canada decisions in which it was made clear that the Constitution, and not Parliament, is now supreme: Carey v. Ontario; Reference re Remuneration of Judges of the Provincial Court (P.E.I.) (the Provincial Court Judges Reference); and Reference re Secession of Quebec (the Quebec Secession case).

Legislation enacted which is contrary to the division of powers as set out in the Constitution Act, 1867 is ultra vires the enacting legislature and has always been subject to a declaration of invalidity by the courts. The enactment of the Constitution Act, 1982 added a second ground on which a court may declare legislation invalid. The applicants argued that the largely unwritten foundational and organizing principles of the Constitution Act, 1867 provide a third ground, in addition to the division of powers and the Charter, on which a court may rely to invalidate legislation enacted by Parliament or by the provincial legislatures. The Supreme Court of Canada has concluded that unwritten constitutional norms may be used to fill a gap in the express terms of the constitutional text or used as interpretative tools where a section of the Constitution is not clear. But the principles of judicial review do not enable a court to strike down legislation in the absence of an express provision of the Constitution which is contravened by the legislation in question. There was no requisite express constitutional provision herein. Moreover there was no gap in the Constitution to be filled. These largely unwritten constitutional norms were not sufficient, in and of themselves, to invalidate otherwise properly enacted legislation.

The applicants argued that by giving the executive a judicial function, namely the discretion to determine whether certain relevant evidence should be disclosed, section 39 offends the doctrine of the separation of powers. The Supreme Court of Canada has held that if Parliament can confer other legal functions on the courts, and certain judicial functions on "bodies that are not courts". Thus Parliament can confer judicial powers on the executive. As to the argument that a legislature cannot oust the inherent supervisory jurisdiction of section 96 courts, section 39 does not immunize executive decisions (to exempt Cabinet documents from disclosure) from judicial review on jurisdictional grounds. Section 39 is not, therefore, contrary to section 96 of the Constitution Act, 1867 . According to the case law, a "right" of judicial review of administrative action in all cases can be precluded entirely, except as to jurisdiction, where the government is involved, even when fairness itself is at stake. An implied doctrine of separation of powers has not been recognized in the context of the Canadian Constitution. As a result, the doctrine of separation of powers cannot be used to strike down intra vires legislation that is not contrary to the Charter.

The three core characteristics of judicial independence are security of tenure, financial security and administrative independence. Section 39 does not affect either security of tenure or the financial security of members of the judiciary. Administrative independence has been defined as control by the courts over the administrative decisions that bear directly and immediately on the exercise of the judicial function, i.e. assignment of judges, sittings of the court, and court lists " as well as the related matters of allocation of court rooms and direction of the administrative staff engaged in carrying out these functions. While the power in the courts to control their own administration is not absolute, Parliament cannot act so as to trammel the authority and function of the courts. Based on that definition, section 39 does not contravene the independence of the judiciary as a constitutional norm. Further, in light of that finding, subsection 38(6) does not affect the "administrative independence" of the judiciary. The submission that subsection 38(6) eliminated judicial discretion to decide whether to allow ex parte submissions, could not be maintained given the two-stage hearing implemented by the Federal Court of Canada which, in some cases, eliminates the need for ex parte submissions.

The three elements of the rule of law are that the law is supreme over the acts of both government and private persons, i.e. there is one law for all; there must be the creation and maintenance of an actual order of positive laws; and the relationship between the individual and the state must be regulated by law. There was no breach of the rule of law herein. The rule of law cannot strike down legislation. Parliament is free to review the Crown's rights and privileges from time to time. However, it is Parliament and not the courts that must undertake this exercise.

Finally, the applicant submitted that section 39, by preventing the Court from inspecting Cabinet documents and thereby balancing the public interests at stake, for example, possible unconstitutional acts of the executive as opposed to the need for Cabinet secrecy and solidarity, is unconstitutional. The privilege given to the executive by section 39 was part of the legislation enacted by Parliament; the executive is not relying on a privilege which exists only at common law. Parliament has the right to override common law principles and provide protection to the executive. Common law principles cannot, in and of themselves, invalidate properly enacted legislation. The purpose of statute law may be to modify the common law rather than to declare it. Parliament's failure to amend section 39 in light of Carey, which sets out the common law on executive privilege, was indicative of its unwillingness to modify the statute law to accord with the principles stated therein.

The cases relied upon to support the proposition that a court may read down a statute where the legislation would otherwise protect unconstitutional action involved unconstitutional legislation. They stand for the proposition that the Crown cannot invoke valid legislation to insulate unconstitutional legislation from judicial review. Section 39 was not ultra vires Parliament. The use of the discretion contained in that section by the executive was therefore valid, subject only to judicial review on jurisdictional ground. The risk that the executive may engage in an abuse of power does not divest Parliament of its power to enact legislation which falls within its jurisdiction. The applicability of section 39 may be questioned where a party disputing the non-disclosure of evidence pursuant to that section: (i) alleges that the executive has breached provisions of the Constitution; and (ii) provides evidence substantiating that allegation. A simple allegation of a breach of the provisions of the Constitution is insufficient. This was not such a case. Although the Commission has stated that it has the jurisdiction to make findings concerning the involvement of the executive in giving improper orders or directions to the RCMP, the inquiry is concerned with the conduct of the RCMP officers and not the conduct of the executive. Further, there was no evidence that the executive had invoked section 39 arbitrarily or with malice.

statutes and regulations judicially considered

Canada Assistance Plan, R.S.C., 1985, c. C-1.

Canada Evidence Act, R.S.C., 1985, c. C-5, ss. 37, 38(6), 39.

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 2, 7, 11(d).

Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5], s. 96.

Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44].

Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 41(2).

Federal Court Rules, 1998, SOR/98-106, Tariff B, Column IV.

Proceedings against the Crown Act (The), R.S.S. 1965, c. 87, s. 5(7).

Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10, ss. 45.43(1) (as enacted by R.S.C., 1985 (2nd Supp.), c. 8, s. 16), 45.44(1) (as enacted idem), 45.45(14) (as enacted idem).

cases judicially considered

applied:

Commission des droits de la personne v. Attorney General of Canada et al., [1982] 1 S.C.R. 215; (1982), 134 D.L.R. (3d) 17; 41 N.R. 318; Canadian Assn. of Regulated Importers v. Canada (Attorney General), [1992] 2 F.C. 130; (1991), 87 D.L.R. (4th) 730; 135 N.R. 217 (C.A.); Bacon v. Saskatchewan Crop Insurance Corp., [1999] S.J. No. 302 (C.A.) (QL).

distinguished:

Carey v. Ontario, [1986] 2 S.C.R. 637; (1986), 58 O.R. (2d) 352; 35 D.L.R. (4th) 161; 22 Admin. L.R. 236; 30 C.C.C. (3d) 498; 14 C.T.C. (2d) 10; 72 N.R. 81; 20 O.A.C. 81; Crevier v. Attorney General of Quebec et al., [1981] 2 S.C.R. 220; (1981), 127 D.L.R. (3d) 1; 38 N.R. 541; B.C. Power Corporation v. B.C. Electric Company, [1962] S.C.R. 642; (1962), 34 D.L.R. (2d) 196; 38 W.W.R. 701; Amax Potash Ltd. et al. v. Government of Saskatchewan, [1977] 2 S.C.R. 576; (1976), 71 D.L.R. (3d) 1; [1976] 6 W.W.R. 61; 11 N.R. 222; Air Canada v. British Columbia (Attorney General), [1986] 2 S.C.R. 539; (1986), 32 D.L.R. (4th) 1; [1987] 1 W.W.R. 304; 8 B.C.L.R. (2d) 273; 22 Admin. L.R. 153; 72 N.R. 135; Little Sisters Book and Art Emporium v. Canada (Minister of Justice) (1996), 134 D.L.R. (4th) 286; 48 C.P.C. (3d) 323 (B.C.S.C.).

considered:

Reference re Secession of Quebec, [1998] 2 S.C.R. 217; (1998), 161 D.L.R. (4th) 385; 55 C.R.R. (2d) 1; 228 N.R. 203; Reference re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3; (1997), 206 A.R. 1; 156 Nfld. & P.E.I.R. 1; 150 D.L.R. (4th) 577; [1997] 10 W.W.R. 417; 483 A.P.R. 1; 121 Man. R. (2d) 1; 49 Admin. L.R. (2d) 1; 118 C.C.C. (3d) 193; 11 C.P.C. (4th) 1; 46 C.R.R. (2d) 1; 217 N.R. 1; 156 W.A.C. 1; Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525; (1991), 83 D.L.R. (4th) 297; [1991] 6 W.W.R. 1; 58 B.C.L.R. (2d) 1; 127 N.R. 161; Canada (Auditor General) v. Canada (Minister of Energy Mines and Resources), [1989] 2 S.C.R. 49; (1989), 61 D.L.R. (4th) 604; 97 N.R. 241; New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319; (1993), 118 N.S.R. (2d) 181; 100 D.L.R. (4th) 212; 327 A.P.R. 181; 13 C.R.R. (2d) 1; 146 N.R. 161; MacKeigan v. Hickman, [1989] 2 S.C.R. 796; (1989), 94 N.S.R. (2d) 1; 61 D.L.R. (4th) 688; 41 Admin. L.R. 236; 50 C.C.C. (3d) 449; 72 C.R. (3d) 129; 100 N.R. 81.

referred to:

Smith, Kline & French Laboratories Limited v. Attorney General of Canada, [1983] 1 F.C. 917; (1983), 38 C.P.C. 182; 76 C.P.R. (2d) 192 (T.D.); Canada (Attorney General) v. Central Cartage Co., [1990] 2 F.C. 641; (1990), 71 D.L.R. (4th) 253; 45 Admin. L.R. 1; 109 N.R. 357 (C.A.); Beauregard v. Canada, [1986] 2 S.C.R. 56; (1986), 30 D.L.R. (4th) 481; 26 C.R.R. 59; 70 N.R. 1; Valente v. The Queen et al., [1985] 2 S.C.R. 673; (1985), 52 O.R. (2d) 779; 24 D.L.R. (4th) 161; 23 C.C.C. (3d) 193; 49 C.R. (3d) 97; 19 C.R.R. 354; 37 M.V.R. 9; 64 N.R. 1; 14 O.A.C. 79; Gold v. R., [1986] 2 F.C. 129; (1986), 25 D.L.R. (4th) 285; 18 Admin. L.R. 212; 64 N.R. 260 (C.A.); Goguen v. Gibson, [1983] 1 F.C. 872 (T.D.); affd [1983] 2 F.C. 463; (1984), 7 D.L.R. (4th) 144; 3 Admin. L.R. 225; 10 C.C.C. (3d) 492; 40 C.P.C. 295; 50 N.R. 286 (C.A.).

authors cited

Cooper, T. G. Crown Privilege. Aurora, Ont.: Canada Law Book, 1990.

APPLICATION challenging, on constitutional grounds, the objections to the disclosure of information relevant to the public enquiry of the RCMP Public Complaints Commission into complaints concerning the conduct of RCMP members in the performance of their duties during the Asia Pacific Economic Cooperation Conference at Vancouver in November 1997. Application dismissed.

appearances:

Joseph J. Arvay, Q.C. for applicant in DES-2-99 and plaintiffs in T-659-99.

Ivan G. Whitehall, Q.C., Ronald M. Snyder, and Simon Fothergill for respondent in DES-2-99 and defendants in T-659-99.

Marvin R. V. Storrow, Q.C. and Barbara Fisher for the intervener RCMP Public Complaints Commission.

solicitors of record:

Arvay Finlay, Victoria, for applicant in DES-2-99 and plaintiffs in T-659-99.

Deputy Attorney General of Canada for respondent in DES-2-99 and defendants in T-659-99.

Blake, Cassels & Graydon, Vancouver, for the intervener RCMP Public Complaints Commission.

The following are the reasons for order rendered in English by

[]McKeown, J.: The applicant and plaintiffs (the applicants) challenge the constitutionality of subsection 38(6) and section 39 of the Canada Evidence Act, R.S.C., 1985, c. C-5 (the Act) on the basis that subsection 38(6) purports to allow the government to make ex parte submissions in favour of non-disclosure of information claimed to be injurious to international relations or national defence or security, while section 39 purports to confer an absolute immunity from judicial inspection and court-ordered disclosure on all "confidence[s] of the Queen's Privy Council for Canada." In the alternative, the applicants submit that the sections should be read down, since they are not applicable in the case before me because of the allegations of unconstitutional conduct on the part of the government. It was agreed that only the constitutional challenges with respect to the hearing under subsection 38(6) and section 39 of the Act would be raised at this hearing.

The Issues

[]The points at issue are whether subsection 38(6) and section 39 of the Canada Evidence Act are ultra vires Parliament on the grounds that they are inconsistent with the Constitution of Canada, including the preamble to the Constitution Act, 1867 [30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5]] and the fundamental and organizing principles of the Constitution.

The Facts

[]This constitutional challenge arises in the context of the respondent's and defendants' (the respondents) objections made with respect to the disclosure of information relevant to the ongoing public enquiry of the Royal Canadian Mounted Police Public Complaints Commission (the Commission) into the conduct of members of the Royal Canadian Mounted Police (the RCMP) during the Asian Pacific Economic Cooperation (APEC) Conference in November 1997. The applicants are all persons who filed complaints concerning the conduct of members of the RCMP in the performance of their duties and functions under the Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10 (the RCMP Act) in relation to events that took place during the APEC Conference. There are approximately 52 complaints that have arisen out of the APEC Conference, the particulars of which have been set out in the document produced by the Commission.

[]On February 20, 1998, Ms. Heafey, Chair of the Commission, decided that it was in the public interest to institute a hearing before a Panel of the Commission (the Panel), pursuant to subsection 45.43(1) [as enacted by R.S.C., 1985 (2nd supp.), c. 8, s. 16] of the RCMP Act. The hearing was to inquire into all matters touching upon the complaints, to hear all evidence relevant thereto and to report, at the conclusion of the hearing, such findings of fact and recommendations as were warranted. Without limiting the foregoing, Ms. Heafey indicated the Panel was to inquire into and report on:

(a) events that took place during, or in connection with, demonstrations during the APEC Conference in Vancouver, B.C. between November 23 and November 27, 1997 on or near the University of British Columbia (UBC) campus and subsequently at the UBC and Richmond Detachments of the RCMP;

(b) whether the conduct of the members of the RCMP involved in the events was appropriate to the circumstances; and

(c) whether the conduct of members of the RCMP involved in the events was consistent with respect for the fundamental freedoms guaranteed by section 2 of the Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]].

[]On February 20, 1998, Ms. Heafey assigned Gerald Morin to act as Chairperson of the Panel, and Vina Starr and John Wright to sit as members of the Panel. Following the resignation of these original Panel members, Ms. Heafey appointed Mr. E. N. (Ted) Hughes, Q.C. (Commissioner Hughes) on December 21, 1998 to conduct the hearing into the complaints. This appointment was made pursuant to subsection 45.44(1) [as enacted by R.S.C., 1985 (2nd Supp.), c. 8, s. 16] of the RCMP Act.

[]In a notice of motion dated January 21, 1999, Commissioner Hughes was asked to make inter alia, the following rulings:

(a) that the Commission has the jurisdiction to investigate whether the Right Honourable Jean Chrétien, Prime Minister of Canada, or members of the Office of the Prime Minister (PMO), the Privy Council Office (PCO), or the Government of Canada gave improper orders or directions to any members of the RCMP respecting security at the APEC Conference;

(b) that the Commission has the jurisdiction to make findings that the Right Honourable Jean Chrétien, Prime Minister of Canada, or members of the PMO, the PCO or the Government of Canada gave improper orders or directions to any members of the RCMP respecting security at the APEC Conference; and

(c) that the Commission has the jurisdiction to make the recommendations to the Commissioner concerning political interference in its operations by the Prime Minister of Canada or members of the PMO, the PCO or the Government of Canada.

[]On February 5, 1999, Commissioner Hughes ruled that the Commission had jurisdiction to conduct the investigation and make the findings and recommendations sought in the said notice of motion, provided there is evidence before the Commission that points in those directions. Commissioner Hughes confirmed this ruling on March 5, 1999.

[]The Commission is a statutory tribunal and its jurisdiction is derived from subsection 45.45(14) [as enacted idem] of the RCMP Act. In his ruling dated March 5, 1999, Commissioner Hughes described his mandate as follows:

Central to this inquiry is the conduct of those members of the Force who are the subject of one or more of the complaints. That is the purpose, function and raison d'être for this proceeding.

[]On March 5, 1999, Commissioner Hughes also ruled that the Commission has jurisdiction to summon any person to give evidence who the Commission deems necessary to the full investigation and consideration of the matter before it. Commissioner Hughes clarified that no person is exempt from being summoned as a witness, provided that there is evidence before the Commission that takes it in that person's direction.

[]The RCMP prepared a document on or about December 2, 1997, entitled "The Most Frequently Asked Questions About APEC Security Measures" in which it is said that "the Prime Minister's Office was not involved in the RCMP security arrangements."

[]The federal government is represented at the hearing by a team of federal government lawyers who, in their opening statement before Commissioner Hughes, acknowledged that officials in the PMO "spoke to police officers responsible for security." Despite this acknowledgement, the federal government lawyers maintain that the "evidence will show that the final decisions respecting security arrangements before and during the APEC conference were taken solely by the RCMP."

[]There is documentary evidence, filed as exhibits before Commissioner Hughes, which reveals that the PMO is reported to have asked the RCMP that "everything that can be done, be done, to satisfy the Indonesian concerns," and likewise to have it made clear to the APEC Canada Coordinating Office (ACCO) that it was "to do anything to ensure the President of Indonesia attends APEC."

[]On or about April 8, 1998, counsel to the Commission wrote to government counsel requesting that the Government of Canada disclose to the Panel all government records relevant to the hearing.

[]In a series of certificates filed between October 9, 1998, and February 23, 1999, a number of government officials objected to the disclosure of numerous documents pursuant to sections 37 and 38 of the Canada Evidence Act. The specific certificates are identified by date and by the name of their author in the application filed by the applicants on March 1, 1999, in Court file no. DES-2-99.

[]On October 3, 1998, Jocelyne Bourgon, Clerk of the Privy Council and Secretary of the Cabinet, objected to the disclosure of eight of the government records in question by certifying pursuant to subsection 39(1) of the Canada Evidence Act that the records contain confidences of the Queen's Privy Council for Canada.

[]On February 22, 1999, Mel Cappe, Clerk of the Privy Council and Secretary of the Cabinet, objected to the disclosure of additional government records by certifying pursuant to subsection 39(1) of the Canada Evidence Act that the records contained confidences of the Queen's Privy Council for Canada.

Analysis

[]I propose to deal with the constitutionality of section 39 first.

[]The applicants challenge the constitutionality of section 39 of the Canada Evidence Act which vests, in the executive branch of government, an absolute right to determine whether "confidence[s] of the Queen's Privy Council" should be excluded from evidence in a case before a court or administrative tribunal even where the content of such "cabinet documents" would be relevant to the proceedings. The applicants assert that Canada is now a constitutional democracy, that is, the Constitution of Canada is supreme and has displaced the doctrine of Parliamentary supremacy. They rely on Reference re Secession of Quebec , [1998] 2 S.C.R. 217 (the Quebec Secession case) to support this proposition. In that case, the Supreme Court of Canada stated at page 258: "This Court has noted on several occasions that with the adoption of the Charter , the Canadian system of government was transformed to a significant extent from a system of Parliamentary supremacy to one of constitutional supremacy." The applicants submit that section 39 is contrary to the largely unwritten fundamental and organizing principles of the Constitution of Canada. The principles relevant to this matter are: the separation of powers, the independence of the judiciary and the rule of law. The applicants argue that, given the supremacy of the Constitution, section 39 should be declared invalid.

[]In the alternative, the applicants submit that at the very least, these unwritten principles of the Constitution must prevent Parliament, as the legislative branch of government, from enacting laws that shield the executive branch from having its allegedly unlawful conduct reviewed by the court or by an administrative tribunal that otherwise has jurisdiction to review such conduct.

[]The respondents state that the applicants' argument was disposed of in Commission des droits de la personne v. Attorney General of Canada et al., [1982] 1 S.C.R. 215 (the Quebec Human Rights case). The respondents disagree with the proposition that there are unwritten fundamental and organizing principles of the Constitution of Canada which impose limits on the enactment of legislation that would otherwise fall within the jurisdiction of Parliament.

[]The starting point of this analysis must be the Quebec Human Rights case, supra, where the Supreme Court of Canada unanimously held subsection 41(2) of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, the predecessor of section 39 of the Canada Evidence Act, to be constitutional. This decision would normally be dispositive of the case. However, the applicants state that this decision pre-dates the coming into effect of the Charter and has been overtaken by three more recent Supreme Court of Canada decisions. They argue that the Quebec Human Rights case, supra, is not, therefore, determinative of this matter. The three cases referred to by the applicants are: Carey v. Ontario, [1986] 2 S.C.R. 637; Reference re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3 (the Provincial Court Judges Reference); and the Quebec Secession case, supra.

[]In the Quebec Human Rights case, the Quebec Human Rights Commission maintained before the Superior Court of Quebec [[1977] C.S. 47] that subsection 41(2) of the Federal Court Act was unconstitutional because it "approved the principle which is repugnant to our system of government and which violates the separation of the executive and judicial powers." In the Quebec Superior Court decision, Deschênes C.J. commented on the evolution of Crown privilege in England, Australia, New Zealand, the United States and Quebec, as well as in Canada prior to 1970 and post 1970. The Chief Justice of the Quebec Superior Court, at page 66 [page 223 S.C.R.] concluded as follows:

(translation) As between the two options open to it, between the two arguments each of which has at times held sway, Parliament decided to select, in matters of national security among others, the theory that the Crown enjoys an absolute immunity from the courts. It reposed its complete confidence in the Ministers of the Crown and it divested the courts of all discretion. As Mahoney J. put it (Landreville v. R., (1977) 70 D.L.R. (3d) 122, 124 and 125), Parliament preferred an interested executive to an impartial judiciary.

Respondent Commission is free to regret this development and complain of it; but it does not follow that Parliament exceeded its jurisdiction or that its legislation is invalid, and the Commission cannot expect to obtain a legislative amendment from the Superior Court.

The Chief Justice concluded that subsection 41(2) was not ultra vires Parliament.

[]The argument raised by the Commission before Deschênes C.J. was not pursued before the Supreme Court of Canada. However, the Court quoted much of Deschênes C.J.'s commentary on Crown privilege, most notably, the paragraphs set out above, supra, at paragraph 22.

[]Before the Supreme Court of Canada, the appellant Commission maintained that [at page 223] "s. 41(2) is without the jurisdiction of Parliament because it trenches on an area exclusively reserved to the provinces, the administration of justice." Chouinard J. rejected this submission and, in doing so, approved the following statement made by Deschênes C.J. at page 224: "it is certainly not unconstitutional, in the sense that by adopting it Parliament trenched on an area of exclusive provincial jurisdiction: the cases which it covers are within federal jurisdiction."

[]Before the Supreme Court, the Attorney General of Quebec, intervened on the question of the constitutionality of section 41 of the Federal Court Act. He submitted [at page 224] that subsection 41(2) was "ultra vires to the extent that it seeks to forbid review by the competent courts of the constitutional legality of a decision by the federal executive to refuse to produce documents." The intervener did not dispute Parliament's power to legislate in relation to the Crown privilege. Nor did the intervener dispute a similar power at the provincial level. However, it was contended that the common law rules concerning this particular privilege, having been developed in the context of a unitary state, cannot be applied as such in a federal state where executive powers are distributed in accordance with the division of legislative authority in the Constitution of Canada.

[]The argument made by the Attorney General of Quebec differs from the one pursued by the Commission before the Quebec Superior Court. In essence, he submitted that subsection 41(2), which deprives the courts of their power to monitor the constitutional legality of the decision of the executive to refuse the production of documents, constitutes an impermissible privative clause.

[]Chouinard J. noted at pages 227-228 that one should not confuse the validity of legislation with the possibility of unconstitutional or unconscionable behaviour under the legislation. He stated:

If I understand correctly . . . what the intervener is referring to is what, in the passage cited above, Mayrand J.A. referred to as (translation) "the risk of an abuse of power that lies beyond judicial review".

However, this risk does not result from the federal nature of the Canadian constitution. It is a risk inherent in absolute privilege, and will occur just as readily in a unitary state. It will also occur with respect to provincial legislation, as was the case in Quebec under art. 332 C.C.P. until it was replaced by art. 308 in 1966.

Once Parliament and the provincial legislatures are admitted to have the power to legislate on this matter in their respective fields (and the power cannot be denied), the risk exists. However, the risk that the Executive will apply legislation that has been validly adopted by Parliament with malice or even arbitrarily does not have the effect of divesting Parliament of its power to legislate. It is important not to confuse the statute adopted by Parliament with the action of the Executive performed in accordance with that statute.

Once it is admitted that Parliament and the provincial legislatures have the power to legislate, it necessarily follows that they can make the privilege absolute. In my view, saying that Parliament and the legislatures cannot make the privilege absolute amounts to a denial of parliamentary supremacy, and to deny Parliament and the legislatures their sovereign powers to legislate in their respective fields of jurisdiction.

The existence of this risk "of an abuse of power" does not in my opinion justify an adverse ruling on the constitutionality of s. 41(2).

[]The applicants submit that the decision in the Quebec Human Rights case, supra, is not determinative of this application since the Supreme Court of Canada "has now made it clear that Canada is a constitutional democracy". To support their position that the Constitution and not Parliament is now supreme, the applicants rely on the Quebec Secession case, supra, at page 258:

The constitutionalism principle bears considerable similarity to the rule of law, although they are not identical. The essence of constitutionalism in Canada is embodied in s. 52(1) of the Constitution Act, 1982, which provides that "[t]he Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect." Simply put, the constitutionalism principle requires that all government action comply with the Constitution. The rule of law principle requires that all government action must comply with the law, including the Constitution. . . . The Constitution binds all governments, both federal and provincial, including the executive branch (Operation Dismantle Inc. v. The Queen , [1985] 1 S.C.R. 441, at p. 455). They may not transgress its provisions; indeed, their sole claim to exercise lawful authority rests in the powers allocated to them under the Constitution, and can come from no other source.

[]It cannot be disputed, however, that Canada has always been a constitutional democracy. The federal nature of Canada as set out in the Constitution Act, 1867 requires that Parliament and the provincial legislatures act in accordance with the Constitution of Canada. Legislation enacted which is contrary to the division of powers is ultra vires the enacting legislature and has always been subject to a declaration of invalidity by the courts. The enactment of the Constitution Act, 1982 [Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44] has merely added a second ground on which a court may declare legislation invalid.

[]In this case, the applicants argue that the largely unwritten fundamental and organizing principles of the Constitution Act, 1867 provide a third ground, in addition to the division of powers and the Charter, on which a court may rely to invalidate legislation enacted by Parliament or by the provincial legislatures.

[]Chief Justice Lamer opened the door to the submissions made by the applicant, in the Provincial Court Judges Reference, supra, at page 68:

. . . I agree with the general principle that the Constitution embraces unwritten, as well as written rules, largely on the basis of the wording of s. 52(2). Indeed, given that ours is a Constitution that has emerged from a constitutional order whose fundamental rules are not authoritatively set down in a single document, or a set of documents, it is of no surprise that our Constitution should retain some aspect of this legacy.

He then went on to say, at page 68:

. . . the existence of many of the unwritten rules of the Canadian Constitution can be explained by reference to the preamble of the Constitution Act, 1867.

After setting out the preamble, he stated at page 75:

The preamble identifies the organizing principles of the Constitution Act, 1867, and invites the courts to turn these principles into the premises of a constitutional argument that culminates in the filling of gaps in the express terms of the constitutional text.

[]Even in the Provincial Court Judges Reference, supra, Lamer C.J. qualified his comments somewhat and pointed out the difficulties that arise from reliance on an unwritten constitution, at page 68:

However, I do wish to add a note of caution. As I said in New Brunswick Broadcasting, supra, at p. 355, the constitutional history of Canada can be understood, in part, as a process of evolution "which [has] culminated in the supremacy of a definitive written constitution". There are many important reasons for the preference for a written constitution over an unwritten one, not the least of which is the promotion of legal certainty and through it the legitimacy of constitutional judicial review. Given these concerns, which go to the heart of the project of constitutionalism, it is of the utmost importance to articulate what the source of those unwritten norms is.

[]The applicants also rely on the Quebec Secession case, supra, to support their position that Parliamentary supremacy has been displaced. In that case, at page 239, the Court reiterated its statement in the Provincial Court Judges Reference, supra, as follows:

The Constitution also "embraces unwritten, as well as written rules". . . .

[]The Court added, at page 240:

These supporting principles and rules, which include constitutional conventions and the workings of Parliament, are a necessary part of our Constitution because problems or situations may arise which are not expressly dealt with by the text of the Constitution.

[]At page 248, the Court once again noted the existence of these underlying constitutional principles and stated that: "observance of and respect for these principles is essential to the ongoing process of constitutional development and evolution of our Constitution as a `living tree'". It then stated at page 249:

Given the existence of these underlying constitutional principles, what use may the Court make of them? In the Provincial Judges Reference, supra, at paras. 93 and 104, we cautioned that the recognition of these constitutional principles (the majority opinion referred to them as "organizing principles" and described one of them, judicial independence, as an "unwritten norm") could not be taken as an invitation to dispense with the written text of the Constitution. On the contrary, we confirmed that there are compelling reasons to insist upon the primacy of our written constitution . . . . In the Provincial Judges Reference, at para. 104, we determined that the preamble "invites the courts to turn those principles into the premises of a constitutional argument that culminates in the filling of gaps in the express terms of the constitutional text". [Emphasis added.]

[]The Court, later, appears to place some restrictions on judicial intervention based on these underlying constitutional principles. This differs somewhat from the language used in the Provincial Court Judges Reference case. In its decision, the Court draws a line between the role of the courts and the legislatures, as stated at page 270:

In the Patriation Reference, a distinction was drawn between the law of the Constitution, which, generally speaking, will be enforced by the courts, and other constitutional rules, such as the conventions of the Constitution, which carry only political sanctions. It is also the case, however, that judicial intervention, even in relation to the law of the Constitution, is subject to the Court's appreciation of its proper role in the constitutional scheme.

[]The Court then referred to Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525 (Canada Assistance Plan case). In that case, the applicants challenged the decision of the federal government to unilaterally reduce its obligation under the Canada Assistance Plan [R.S.C., 1985, c. C-1] and Agreement. The applicants argued that the government's exercise of its spending power was contrary to the "overriding principle of federalism". The Supreme Court of Canada held that the federalism principle, in and of itself, could not be used to strike down otherwise valid legislation. In particular, at page 545, supra , it stated:

In exercising its discretion whether to determine a matter that is alleged to be non-justiciable, the Court's primary concern is to retain its proper role within the constitutional framework of our democratic form of government.

[]The Court observed at page 271 of the Quebec Secession case, supra, that a doctrine of judicial restraint, analogous to the one set out in the Canada Assistance Plan decision, supra, was in operation. It also noted at page 271 that in Canada (Auditor General) v. Canada (Minister of Energy Mines and Resources), [1989] 2 S.C.R. 49 (the Auditor General's case) the Court observed at page 91 that:

There is an array of issues which calls for the exercise of judicial judgment on whether the questions are properly cognizable by the courts. Ultimately, such judgment depends on the appreciation by the judiciary of its own position in the constitutional scheme.

[]The Supreme Court of Canada has concluded that unwritten constitutional norms may be used to fill a gap in the express terms of the constitutional text or used as interpretative tools where a section of the Constitution is not clear. However, as noted by La Forest J., dissenting in Provincial Court Judges Reference, the principles of judicial review do not enable a court to strike down legislation in the absence of an express provision of the Constitution which is contravened by the legislation in question.

[]The respondents have pointed out that, in the case before me, the requisite express constitutional provision does not exist. Moreover they note that there is no gap in the Constitution to be filled. In my view, these largely unwritten constitutional norms are not sufficient, in and of themselves, to invalidate otherwise properly enacted legislation.

[]However, in view of the extensive submissions made by the applicants, I will now look specifically at the particular unwritten principles relied on by the applicants to invalidate section 39 and subsection 38(6) of the Canada Evidence Act.

The Unwritten Principles of the Constitution Act, 1867

[]Before examining the largely unwritten constitutional principles highlighted by the applicants, I note that the supremacy of Parliament is also a basic, unwritten tenet of the Canadian Constitution. McLachlin J. stated in New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319, at page 384:

. . . it seems clear that, from an historical perspective, Canadian legislative bodies possess such inherent privileges as may be necessary to their proper functioning. These privileges are part of the fundamental law of our land, and hence are constitutional.

[]Furthermore, in the Auditor General's case, supra, Dickson C.J., stated at page 103:

It is of no avail to point to the fusion of powers which characterizes the Westminster system of government . . . . The grundnorm with which the courts must work in this context is that of the sovereignty of Parliament.

[]The importance of Parliamentary sovereignty was also noted in MacKeigan v. Hickman, [1989] 2 S.C.R. 796, at page 832:

. . . the fundamental principle of judicial independence must leave scope for another cardinal doctrine"the principle of Parliamentary supremacy. But at the same time, it is clear that Parliament and the Legislatures cannot act so as to trammel what Dickson C.J. in Beauregard v. Canada refers to as the authority and function of the courts.

[]It is important to recall that the case before me deals with legislation enacted by Parliament and not an attempt by the executive to protect itself by invoking a common law Crown privilege.

[]The applicants, as stated earlier, rely on three unwritten constitutional principles which they claim limit the application of the doctrine of Parliamentary supremacy. They acknowledge that section 39 is otherwise within the jurisdiction of Parliament and must therefore be found to be contrary to: the separation of powers, the independence of the judiciary and the rule of law, that is, unwritten constitutional norms, to be declared invalid. I will now examine whether section 39 offends any of these principles beginning with the "separation of powers" doctrine.

(i)  The Separation of Powers Doctrine

[]The applicants argue that the separation of powers is a fundamental and organizing principle of the Constitution of Canada. By giving the executive a judicial function, namely, the discretion to determine whether certain relevant evidence should be disclosed, section 39 offends the doctrine of the separation of powers.

[]The existence of a rigid doctrine of separation of powers in the constitutional law of Canada is doubtful at best. This is particularly true in light of the specific assertion made by the Supreme Court in the Quebec Secession case, at page 233:

. . . the Canadian Constitution does not insist on a strict separation of powers. Parliament and the provincial legislatures may properly confer other legal functions on the courts, and may confer certain judicial functions on bodies that are not courts. The exception to this rule relates only to s. 96 courts.

I conclude that if Parliament can confer other legal functions on the courts, and certain judicial functions on "bodies that are not courts", it can confer judicial powers on the executive.

[]The applicants rely on Crevier v. Attorney General of Quebec et al., [1981] 2 S.C.R. 220 which held that it was impermissible for a legislature to oust the inherent supervisory jurisdiction of section 96 courts. The headnote sums up the relevant facts and findings at page 221:

Where a provincial legislature purports to insulate one of its statutory tribunals from any curial review of its adjudicative functions, and where that insulation encompassing jurisdiction, the legislation must be struck down as unconstitutional because it constitutes, in effect, a s. 96 court. It is unquestioned that privative clauses, when properly framed, may effectively oust judicial review on questions of law and on other issues not touching jurisdiction. However, given that s. 96 is in the British North America Act and that it would make a mockery of it to treat it in non-functional formal terms as a mere appointing power, there is nothing that is more the hallmark of a superior court than the vesting of power in a provincial statutory tribunal to determine the limits of its jurisdiction without appeal or other review. Consequently, a provincially-constituted statutory tribunal could not constitutionally be immunized from review of decisions on questions of jurisdiction.

[]Unlike the scheme challenged in Crevier, supra, section 39 does not immunize executive decisions, to exempt Cabinet documents from disclosure, from judicial review on jurisdictional grounds. This is confirmed by the Federal Court decisions in Smith, Kline & French Laboratories Limited v. Attorney General of Canada, [1983] 1 F.C. 917 (T.D.), and Canada (Attorney General) v. Central Cartage Co., [1990] 2 F.C. 641 (C.A.). Section 39 is not, therefore, contrary to section 96 of the Constitution Act, 1867.

[]While I am not dealing with section 7 of the Charter in the case before me"although the applicants reserve their rights to pursue a section 7 challenge to section 39 in a higher court"in my view, the statements of MacGuigan J.A. in relation to the right of judicial review of administrative action found in Canadian Assn. of Regulated Importers v. Canada (Attorney General) , [1992] 2 F.C. 130 (C.A.), at page 158, are instructive:

Accordingly, section 7 is implicated when physical liberty is restricted in any circumstances, when control over mental or physical integrity is exercised, or when the threat of punishment is invoked for non-compliance. There is nothing of that kind, or within striking distance of it, on the facts of the case at bar. The interest which the individual appellants want to assert is a shadowy traditional "right" of judicial review of administrative action in all cases. However, the jurisprudence shows that such a right can be precluded entirely except as to jurisdiction, where the executive branch of government is involved, even when fairness itself is at stake: Attorney General of Canada v. Inuit Tapirisat of Canada et al., [1980] 2 S.C.R. 735. [Emphasis added.]

[]I find that an implied doctrine of the separation of powers has not been recognized in the context of the Canadian Constitution. As a result, I conclude that the doctrine of separation of powers cannot be used to strike down intra vires legislation that is not contrary to the Charter.

(ii)  The Doctrine of the Independence of the Judiciary

[]The applicants submit that the principle of judicial independence is a largely unwritten, underlying principle of the Constitution and thus has the force of law. In the Provincial Court Judges Reference, supra, Chief Justice Lamer makes several statements which lead one in this direction. Although that Reference dealt solely with the application of paragraph 11(d) of the Charter, Chief Justice Lamer addressed a broader question, namely, the unwritten basis of judicial independence. He observed, at pages 63-64:

Notwithstanding the presence of s. 11(d) of the Charter, and ss. 96-100 of the Constitution Act, 1867, I am of the view that judicial independence is at root an unwritten constitutional principle, in the sense that it is exterior to the particular sections of the Constitution Acts. The existence of that principle whose origins can be traced to the Act of Settlement of 1701, is recognized and affirmed by the preamble to the Constitution Act, 1867. The specific provisions of the Constitution Acts, 1867 to 1982, merely "elaborate that principle in the institutional apparatus which they create. . ."

[]Chief Justice Lamer then referred to the decision in Beauregard v. Canada, [1986] 2 S.C.R. 56 (Beauregard) and determined, at pages 75-76, that the Supreme Court has held: "that the preamble of the Constitution Act, 1867 , and in particular, its reference to `a Constitution similar in Principle to that of the United Kingdom', was `textual recognition' of the principle of judicial independence." In concluding his discussion of the unwritten basis of judicial independence, the Chief Justice stated at pages 77-78 that:

. . . the express provisions of the Constitution Act, 1867 and the Charter are not an exhaustive written code for the protection of judicial independence in Canada. Judicial independence is an unwritten norm, recognized and affirmed by the preamble to the Constitution Act, 1867. In fact, it is in that preamble, which serves as the grand entrance hall to the castle of the Constitution, that the true source of our commitment to this foundational principle is located.

[]La Forest J., in dissent, pointed out that the matter was not fully argued in the Provincial Court Judges Reference, supra. In particular, he stated at pages 180-181:

A more general answer to the question lies in the nature of the power of judicial review. The ability to nullify the laws of democratically elected representatives derives its legitimacy from a super-legislative source: the text of the Constitution. This foundational document (in Canada, a series of documents) expresses the desire of the people to limit the power of legislatures in certain specified ways. Because our Constitution is entrenched, those limitations cannot be changed by recourse to the usual democratic process. They are not cast in stone, however, and can be modified in accordance with a further expression of democratic will: constitutional amendment.

Notwithstanding that the argument and the evidence before the Court was largely directed at paragraph 11(d) of the Charter, Lamer C.J. returned to the independence of the judiciary and defined the content of judicial independence as follows, at page 79:

Le Dain J. went on in Valente to state that independence was premised on the existence of a set of "objective conditions or guarantees" (p. 685), whose absence would lead to a finding that a tribunal or court was not independent. The existence of objective guarantees, of course, follows from the fact that independence is status oriented; the objective guarantees define that status. However, he went on to supplement the requirement for objective conditions with what could be interpreted as a further requirement: that the court or tribunal be reasonably perceived as independent. The reason for this additional requirement was that the guarantee of judicial independence has the goal not only of ensuring that justice is done in individual cases, but also of ensuring public confidence in the justice system.

[]Lamer C.J., after setting out the principal propositions established in Valente v. The Queen et al., [1985] 2 S.C.R. 673, identified the three core characteristics of judicial independence enumerated by Le Dain J., namely: "security of tenure, financial security and administrative independence". Section 39 does not affect either the security of tenure or the financial security of members of the judiciary. As a result, I will focus on the impact of section 39 on "administrative independence" as defined by Lamer C.J. at page 81, again relying on Valente , supra:

. . . control by the courts "over the administrative decisions that bear directly and immediately on the exercise of the judicial function" (p. 712). These were defined (at p. 709) in narrow terms as

assignment of judges, sittings of the court, and court lists"as well as the related matters of allocation of court rooms and direction of the administrative staff engaged in carrying out these functions . . . .

[]Lamer C.J. then spoke more broadly about the institutional independence of the judiciary but these comments must be read in light of his earlier remarks. He stated at pages 84-85:

By contrast, the institutional independence of the judiciary was said to arise out of the position of the courts as organs of and protectors "of the Constitution and the fundamental values embodied in it"rule of law, fundamental justice, equality, preservation of the democratic process, to name perhaps the most important" (p. 70). Institutional independence enables the courts to fulfill that second and distinctly constitutional role.

Beauregard identified a number of sources for judicial independence which are constitutional in nature. As a result, these sources additionally ground the institutional independence of the courts. The institutional independence of the courts emerges from the logic of federalism, which requires an impartial arbiter to settle jurisdictional disputes between the federal and provincial orders of government. Institutional independence also inheres in adjudication under the Charter, because the rights protected by that document are rights against the state. As well, the Court pointed to the preamble and judicature provisions of the Constitution Act, 1867, as additional sources of judicial independence; I also consider those sources to ground the judiciary's institutional independence. Taken together, it is clear that the institutional independence of the judiciary is "definitional to the Canadian understanding of constitutionalism" (Cooper , supra, at para. 11).

But the institutional independence of the judiciary reflects a deeper commitment to the separation of powers between and amongst the legislative, executive and judicial organs of government: see Cooper, supra, at para. 13. This is also clear from Beauregard, where this Court noted (at p. 73) that although judicial independence had historically developed as a bulwark against the abuse of executive power, it equally applied against "other potential intrusions, including any from the legislative branch" as a result of legislation.

[]In my view, Lamer C.J. did not diminish the role of parliamentary supremacy in favour of judicial independence. The relationship between these two constitutional tenets was specifically discussed by Madam Justice McLachlin in MacKeigan v. Hickman, supra, at page 832:

I do not say that the power in the courts to control their own administration is absolute, if by absolute what is meant is that in no circumstances can the Legislature or Parliament enact laws relating to the functioning of the courts or enquire into the conduct of particular judges. . . . But at the same time, it is clear that Parliament and the Legislatures cannot act so as to trammel what Dickson C.J. in Beauregard v. Canada refers to as the authority and function of the courts.

[]I cannot conclude, based on the definition of "administrative independence" set out in Valente , supra, and in the Provincial Court Judges Reference, supra, that section 39 of the Canada Evidence Act contravenes the independence of the judiciary as a constitutional norm.

[]Further, in light of my finding that section 39 does not offend the independence of the judiciary, I conclude that subsection 38(6) does not affect the "administrative independence" of the judiciary. The applicants submit that subsection 38(6) eliminates judicial discretion to decide whether to allow ex parte submissions. This submission cannot be maintained given the two-stage hearing implemented by the Federal Court of Canada which, in some cases, eliminates the need for ex parte submissions. (See Gold v. R., [1986] 2 F.C. 129 (C.A.) and Goguen v. Gibson, [1983] 1 F.C. 872 (T.D.); affd [1983] 2 F.C. 463 (C.A.).)

(iii)  The rule of law

[]In light of the Saskatchewan Court of Appeal decision in Bacon v. Saskatchewan Crop Insurance Corp., [1999] S.J. No. 302 (C.A.) (QL), the applicants place less reliance on the constitutional principle of the rule of law. In the Quebec Secession case, at pages 257-258, the Supreme Court reviewed the elements of rule of law and its place in the Constitution of

The principles of constitutionalism and the rule of law lie at the root of our system of government. The rule of law, as observed in Roncarelli v. Duplessis, [1959] S.C.R. 121, at p. 142, is "a fundamental postulate of our constitutional structure". . . . At its most basic level, the rule of law vouchsafes to the citizens and residents of the country a stable, predictable and ordered society in which to conduct their affairs. It provides a shield for individuals from arbitrary state action.

In the Manitoba Language Rights Reference, supra, at pp. 747-52, this Court outlined the elements of the rule of law. We emphasized, first, that the rule of law provides that the law is supreme over the acts of both government and private persons. There is, in short, one law for all. Second, we explained, at p. 749, that "the rule of law requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order". . . . A third aspect of the rule of law is, as recently confirmed in the Provincial Judges Reference , supra, at para. 10, that "the exercise of all public power must find its ultimate source in a legal rule". Put another way, the relationship between the state and the individual must be regulated by law. Taken together, these three considerations make up a principle of profound constitutional and political significance.

[]In my view, there is no breach of the rule of law in the case before me. The decision in Bacon v. Saskatchewan Crop Insurance Corp., supra, is of great assistance in this respect. In that case, the government had sought to insulate itself from any actions for damages in the agricultural field. The amendments were draconian, in the sense that in any action or proceeding against the Crown or a Crown agent, with respect to the areas in question and the years in question [at paragraph 3]: "a court shall not consider any principle of law or in equity that would require adequate, reasonable or any notice with respect to any amendments or changes to the contract to be provided by the corporation to any party to the contract." At paragraph 4 of the decision, the Court stated:

At trial, the appellants contended the Government had no authority to pass this legislation as governments, like everyone else, are subject to the law. The rule of law is a concept or principle so fundamental that even governments are not exempt from its application. This meant the laws of the land, including those relating to contractual obligations, are as binding upon the government as upon the public. As a consequence, the Government has no legal authority to pass legislation imposing a new contract and extinguishing the right to sue for the breach of an earlier contract.

[]The appellants in Bacon, supra, expressly stated that the case was not about the Canadian Charter of Rights and Freedoms and furthermore, that [at paragraph 7] "this case is not about the division of powers in the Constitution between the federal and provincial governments." In the appellants' view, the case was about the "Rule of Law in the democratic society".

[]The government submitted that the "role of Parliament (which is a word [used] to include legislatures) is supreme when acting within its constitutional limits", as the government contended was the situation in Bacon , supra. "For this reason, the question of whether the passage of the legislation was an arbitrary use of power need not be asked" (see Bacon , supra, at paragraph 11).

[]The Saskatchewan Court of Appeal reviewed the pronouncements of the Supreme Court of Canada in the Quebec Secession case. In particular, the Court of Appeal commented [at paragraph 24] on the Supreme Court's statements at page 258, where it emphasized that: "the rule of law provides that the law is supreme over the acts of both government and private persons." The Court of Appeal agreed that this paragraph was "the most compelling support for the position" of the appellants, and stated at paragraphs 25-27 and 29:

They interpret the statement "the law is supreme over the acts of both government and private persons" as being an unequivocal indication the government has no more right to avoid its contractual obligations then [sic ] does a private person.

This is not what I take from this statement. It is nothing more than an acceptance that the law as it exists is applicable to both government and private persons. It is a fundamental statement of the obligation of governments which is not challenged by any of the parties to this appeal. However, the law, including the common law, is subject to change by legislation and when changed it is this changed law which is the "one law for all". The law, which is applicable to us all, cannot be taken as static and unchangeable. It is forever evolving and Parliament plays a major role in its development. There is no statement in the Secession case which would suggest otherwise.

I see the above comments taken from the Secession case as nothing more than providing a necessary examination of the foundation of federalism as it exists in this country. That examination involved reaffirmation of an earlier statement that the rule of law is a "fundamental postulate" of our Constitution. This examination of federalism was not undertaken with the intent of changing historically accepted notions of parliamentary supremacy but to lay a foundation for the question they were required to consider, namely, the right of one province to secede.

    . . .

I am unable to accept that these justices of the Supreme Court, whilst providing an analysis of our federal system, were at the same time engaged in changing that system. That is particularly so when we are not talking of a subtle or marginal change, but one which would reduce the supremacy of Parliament by subjecting it to the scrutiny of superior court judges to be sure it did not offend the rule of law and if it did, to determine whether it was an arbitrary action. If the Supreme Court of Canada meant to embrace such a doctrine, I would expect it would see the need to say so very clearly in a case where that was the issue before them. This is particularly so when they are not only cognizant of the many cases in various jurisdictions acknowledging the supremacy of Parliament, but must also be aware of their own previous judgments which have endorsed that principle such as: PSAC v. Canada, [1987] 1 S.C.R. 424, Reference re Canada Assistance Plan, [1991] 2 S.C.R. 525, Attorney General for British Columbia v. Esquimalt & Nanaimo Railway, [1950] A.C. 87 (P.C.).

[]The rule of law cannot strike down legislation, as evidenced from the foregoing. Parliament is free to review the Crown's rights and privileges from time to time. However, it is Parliament and not the courts that must undertake this exercise.

The Public Interest Argument

[]Finally, the applicants submit that the public interest in ensuring that the Constitution of Canada is respected and upheld is more important than the public interest in preserving Cabinet confidences. They submit that section 39, by preventing the Court from inspecting Cabinet documents and thereby balancing the public interests at stake, for example, possible unconstitutional acts of the executive as opposed to the need for Cabinet secrecy and solidarity, is unconstitutional. The applicants rely on Carey, supra, but even in Carey, La Forest J. stated at page 671:

If the certificate was properly framed [i.e. for example, if it is in regards to national security or diplomatic relations], the court might in such a case well agree to their being withheld even without inspection; see in this context Goguen v. Gibson, supra. For on such issues, it is often unwise even for members of the judiciary to be aware of their contents, and the period in which they should remain secret may be very long.

[]La Forest J.'s comments in Carey, supra, must be taken in the context of his description of the issue therein. He stated at page 639:

The immediate issue is whether the appellant Carey is entitled to compel production in an action against the Crown in right of Ontario and the other respondents of Cabinet documents in the possession of the executive government of the province which, he contends, would support his claim. In Ontario, this issue falls to be decided under common law.

La Forest J. continued at pages 659-660:

The idea that Cabinet documents should be absolutely protected from disclosure has in recent years shown considerable signs of erosion. This development began in the United States in the famous case of United States v. Nixon, 418 U.S. 683 (1974), where a subpoena was directed to the former President of that country to produce tape recordings and documents relating to certain conversations and meetings between him and others. The President, claiming executive privilege, filed a motion to have the subpoena quashed, but the Supreme Court of the United States, affirming the courts below, rejected the President's claim.

[]Again, in the case before me, the privilege given to the executive by section 39 of the Canada Evidence Act is part of legislation enacted by Parliament; the executive is not, in this case, relying on a privilege which exists only at common law.

[]La Forest J. reviewed the English and Australian jurisprudence, none of which, however, dealt with a Crown privilege resulting from a legislative framework that protects Cabinet confidences. The applicants submit that the principles summed up by La Forest J. at pages 670-671 are applicable to the case before me. While I concur with the importance of these principles, in my view, Parliament has the right to override these principles and provide protection to the executive.

[]MacGuigan J.A. of the Federal Court of Appeal dealt with this issue in Canadian Assn. of Regulated Importers v. Canada (Attorney General), supra, at pages 148-149:

While Carey represents a very important statement of the common law, it cannot, in my view, be considered to be determinative of the law found in the Canada Evidence Act, since the purpose of statute law may well be to modify the common law rather than to declare it. Everything depends on the wording of the particular statute, considered in its total context.

The wording of section 39 of the Act seems to me to be clear enough: an objection to the disclosure of information by a minister of the Crown or the Clerk of the Privy Council is determinative of the matter where the minister or the Clerk certifies in writing that the information constitutes a confidence of the Queen's Privy Council for Canada; in that case disclosure of the information is to be denied without further examination.

As Strayer J. said in Smith, Kline & French Laboratories Limited v. Attorney General of Canada, [1983] 1 F.C. 917 (T.D.) at pages 929-931 and as was reinforced by this Court in Central Cartage, supra, it is surely open to a court to determine whether a certificate by a minister or the Clerk asserts a privilege in the terms allowed by the statute, but a court cannot go behind the certificate and examine the documents. The matter was put this way by Iacobucci C.J. for this Court in Central Cartage (at pages 652-653) where the Clerk of the Privy Council had objected to the disclosure of eight documents by issuing a certificate under what is now section 39:

It appears clear that Parliament intended by passing section 36.3 [now section 39] that the determination of whether any information constitutes a confidence of the Queen's Privy Council is to be made by a Minister of the Crown or the Clerk of the Privy Council. Subject only to compliance with the express requirements of the section, the decision of the Minister or the Clerk, as certified in writing by him or her, is not subject to review by any court. The court cannot go behind the certificate and examine the documents as it can under sections 36.1 [now section 37] and 36.2 [now section 38] of the Canada Evidence Act. However, it is open to a court to see whether the certificate on its face asserts a privilege within the statutory limitations on claims for privilege by the executive.

[]I agree with Mr. Cooper's comment in Crown Privilege, Aurora, Ont.: Canada Law Book Inc., 1990, at page 141:

Both branches have duties to safeguard public interests, but only one can take the decision on disclosure of Cabinet documents. The fact that Parliament has enacted legislation which assigns total responsibility to the Executive has no impact on the constitutional relationship. As with any common law development, Parliament has a duty and a political mandate to create legislation which, when considered in the context of the common law, expresses the will of the public. Such is the historic interaction of statute and common law; to deny Parliament's supremacy with respect to the legislation of statutory provisions which are otherwise constitutional (constitutional in the sense of the federal and provincial division of powers and with respect to the Charter), would clearly undermine the constitutional tension.

[]In the final analysis, Carey, supra, is a statement of the common law. The principles set out by La Forest J. cannot, in and of themselves, invalidate properly enacted legislation. As MacGuigan J.A. noted in Canadian Assn. of Regulated Importers, supra, the purpose of statute law may be to modify the common law rather than to declare it.

[]Parliament's failure to amend section 39 in light of Carey, supra, is indicative of its unwillingness to modify the statute law to accord with the principles stated in that case.

The Applicants' Alternative Argument

[]In the alternative, the applicants submit that the privilege in section 39 should be limited to cases in which the "confidences of the Queen's Privy Council" sought by an applicant are not relevant to a potential violation of the Constitution by the executive. They rely on B.C. Power Corporation v. B.C. Electric Company, [1962] S.C.R. 642; Amax Potash Ltd. et al. v. Government of Saskatchewan, [1977] 2 S.C.R. 576; and Air Canada v. British Columbia (Attorney General), [1986] 2 S.C.R. 539 to support the proposition that a court may read down a statute where the legislation would otherwise protect unconstitutional action.

[]The respondents argue that the cases cited by the applicants are not applicable when the law challenged is within the jurisdiction of Parliament. The respondents acknowledge that the Crown cannot enact unconstitutional legislation and then insulate that legislation from review by the courts. However, according to the jurisprudence, a court should only intervene where a legislature enacts legislation that effectively allows it to do indirectly what it cannot do directly.

[]In the B.C. Power case, supra, the Crown in right of British Columbia opposed the appointment of a receiver on the ground that such an appointment would affect its immunity based on an interest in property. Chief Justice Kerwin, at pages 644-645, held that:

In a federal system, where legislative authority is divided, as are also the prerogatives of the Crown, as between the Dominion and the Provinces, it is my view that it is not open to the Crown, either in right of Canada or of a Province, to claim a Crown immunity based upon an interest in certain property, where its very interest in that property depends completely and solely on the validity of the legislation which it has itself passed, if there is a reasonable doubt as to whether such legislation is constitutionally valid. To permit it to do so would be to enable it, by the assertion of rights claimed under legislation which is beyond its powers, to achieve the same results as if the legislation were valid.

[]In the Amax Potash case, supra, the plaintiffs paid a tax levied by the province under protest and subsequently challenged the jurisdiction of the legislature to impose the tax. The province relied on subsection 5(7) of The Proceedings against the Crown Act, R.S.S. 1965, c. 87 which prohibited any proceeding in respect of an action taken under an invalid statute. Justice Dickson [as he then was] observed at page 592 that:

. . . if a statute is found to be ultra vires the legislature which enacted it, legislation which would have the effect of attaching legal consequences to acts done pursuant to that invalid law must equally be ultra vires because it relates to the same subject-matter as that which was involved in the prior legislation. If a state cannot take by unconstitutional means it cannot retain by unconstitutional means.

He later stated at page 594:

For the foregoing reasons, I have concluded that s. 5(7) of The Proceedings against the Crown Act is ultra vires the Province of Saskatchewan in so far as it purports to bar the recovery of taxes paid under a statute or statutory provision which is beyond the legislative jurisdiction of the Legislature of Saskatchewan.

[]Finally, in the Air Canada case, supra, La Forest J., speaking for a unanimous Court, noted at page 543 that there is a "well established principle that neither Parliament nor a legislature can preclude a determination of the constitutional validity of legislation". In that case, the Lieutenant Governor refused to issue a fiat, thereby preventing the plaintiff from seeking a declaration that it was entitled to reimbursement for all monies paid pursuant to a law which it claimed was ultra vires the legislature. La Forest J. found at page 545 that:

. . . if even a statute cannot permit the retention of monies obtained under an unconstitutional statute, that result cannot be achieved under a purported exercise of a discretion to refuse a fiat, whatever may be the legal foundation of that supported [sic] discretion. All executive powers, whether they derive from statute, common law or prerogative, must be adapted to conform with constitutional imperatives.

He concluded at page 546 that:

. . . whatever discretion there may be in a non-constitutional matter, in a case like the present, the discretion must be exercised in conformity with the dictates of the Constitution, and the Crown's advisers must govern themselves accordingly. Any other course would violate the federal structure of the Constitution.

[]These three cases cited by the applicants are distinguishable in that they stand for the proposition that the Crown cannot invoke valid legislation, or use its prerogative powers, to insulate unconstitutional legislation, or the effects thereof, from judicial review. In other words, neither the legislature nor the executive may attempt to accomplish indirectly what is otherwise ultra vires the Crown.

[]In this case, the applicants have not established that section 39 is ultra vires Parliament. The use of the discretion contained in that section by the executive is therefore valid, subject only to judicial review on jurisdictional ground. As noted by Chouinard J. in the Quebec Human Rights case, supra, at page 227, the risk that the executive may engage in an abuse of power does not divest Parliament of its power to enact legislation which falls within its jurisdiction.

[]I note, however, that at pages 228-229, Chouinard J. indicated that there may be circumstances in which the applicability of section 39 may be questioned.

It is perhaps conceivable that a case could arise of an abuse which I have called characterized, in which the courts would be justified in considering whether s. 41(2) is inapplicable. It is not necessary to decide the point, for the case at bar is clearly not such a case. It is apparent from rereading the affidavit that it relies on the federal public interest. Nothing contained in the record and no allegation even suggests that it might be otherwise.

[]It is possible that the applicability of section 39 may be questioned where a party, disputing the non-disclosure of evidence pursuant to that section: (i) alleges that the executive has breached provisions of the Constitution; and (ii) provides evidence substantiating that allegation. A simple allegation of a breach of the provisions of the Constitution is insufficient.

[]This is not such a case. In my view, it would be improper to declare that section 39 is inapplicable in the circumstances of this case. The mandate of the Commission, which is a public inquiry incapable of establishing either civil or criminal liability, is to investigate whether the conduct of RCMP officers assigned to the APEC Conference contravened the Charter. Although the Commission has stated that it has the jurisdiction to make findings concerning the involvement of the executive in giving improper orders or directions to the RCMP, the inquiry is concerned with the conduct of the RCMP officers and not the conduct of the executive.

[]Further, the applicants have not provided me with any evidence showing that the executive has applied section 39 of the Canada Evidence Act arbitrarily or with malice.

[]For the foregoing reasons, the application is dismissed.

[]I award costs to the plaintiffs in accordance with the maximum number of units in Column IV of Tariff B [Federal Court Rules, 1998, SOR/98-106]. In my view, the testing of the constitutional principles involved in this matter is clearly in the public interest, since they are at the heart of our constitutional democracy. I agree with Mr. Justice Smith in Little Sisters Book and Art Emporium v. Canada (Minister of Justice) (1996), 134 D.L.R. (4th) 286 (B.C.S.C.), at page 292, where he states:

The plaintiffs were unsuccessful on their constitutional challenge to the legislation but they should not suffer a reduction in costs on that account. The issues are of great importance, the case was difficult and expensive to present, and the plaintiffs provided a full evidential basis for the consideration of the issues raised. Moreover, the financial consequences of the presentation of the case are onerous for the plaintiffs and can more easily be defrayed by the federal Crown. This is a proper factor to consider: Landry and Landry v. Bridgestone Tire Co. Ltd. et al. (1975), 66 D.L.R. (3d) 408, [1976] 3 W.W.R. 160 (B.C.S.C.) and is particularly cogent in these circumstances where it is in the public interest to have the issues considered and determined.