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Evidence - Cabinet Confidences (2). Canadian Coalition for Firearm Rights v. Canada (Attorney General)
In Canadian Coalition for Firearm Rights v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal dismissed four consolidated appeals, here from dismissals from "six applications for judicial review of the Regulations Amending the Regulations Prescribing Certain Firearms and Other Weapons, Components and Parts of Weapons, Accessories, Cartridge Magazines, Ammunition and Projectiles as Prohibited, Restricted or Non-Restricted, SOR/2020-96 (the Regulations)".
Here the court considers whether the evidentiary doctrine of 'adverse inference' applies to the Crown when it exercised the CEA s.39 ['Confidences of the Queen’s Privy Council for Canada'] authority to issue certificates to prevent disclosure of information:A. Did the Federal Court err in not drawing an adverse inference from the AGC’s use of Cabinet confidence and filing of section 39 CEA certificates to avoid producing the record before the GIC?
[32] The Doherty, Eichenberg and Generoux appellants claim that the Federal Court erred in not drawing an adverse inference from the respondent’s reliance on section 39 of the CEA. They reiterated many of the arguments they had previously made in support of this submission. Relying on RJR-MacDonald Inc. v. Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 S.C.R. 199, 127 D.L.R. (4th) 1 [RJR-MacDonald], Babcock v. Canada (Attorney General), 2002 SCC 57 [Babcock], Tsleil-Waututh Nation v. Canada (Attorney General), 2017 FCA 128 [Tsleil-Waututh] and Canada (Citizenship and Immigration) v. Canadian Council for Refugees, 2021 FCA 72, they submit that the evidentiary gaps resulting from the issuance of a section 39 CEA certificate by the Clerk of the Privy Council immunized the Regulations from review. They argue that obtaining this certificate supports the inference that either the materials which were before the GIC would tend to undercut the respondent’s assertion that it reasonably formed the opinion required by subsection 117.15(2) of the Code, or there was no evidence whatsoever in that respect.
[33] In my view, the Federal Court thoroughly reviewed these submissions and properly rejected them. It first noted that the appellants had not challenged the section 39 CEA certificate, as they could have done. More importantly, there was no evidence that the Clerk exceeded her authority in issuing the certificate or that the information it covered did not fall within the scope of section 39 of the CEA. Finally, the Federal Court reviewed the cases relied upon by the appellants and found that in the circumstances of this case, an adverse inference was not warranted because the assertion of Cabinet confidence did not thwart the Court’s ability to conduct a robust judicial review of the Regulations.
[34] The weighing of evidence in assessing whether an inference should be drawn is a question of mixed fact and law, reviewable on the Housen standard of palpable and overriding error. I find no such error in the Federal Court’s analysis. As was pointed out at the hearing, absent any evidence tending to show that the Clerk improperly invoked section 39 of the CEA, drawing an adverse inference because of alleged evidentiary gaps would amount, for all intents and purposes, negating or repealing the protection given to Cabinet confidentiality by section 39 of the CEA. Nor was there any evidence of selective disclosure on the part of the AGC, as was the case in RJR-MacDonald. While the Supreme Court acknowledged that the selective disclosure of documents or information could be used unfairly as a litigation tactic and amount to an improper use of section 39 of the CEA, no such misconduct was alleged by the appellants in this case.
[35] The only allegation of improper purpose or bad faith raised by the appellants relates to the timing of the filing of the section 39 CEA certificate. They contend that the Federal Court incorrectly stated that the section 39 CEA certificate was issued on December 3, 2020, whereas it was actually issued on June 15, 2021. They also fault the Federal Court for making no mention of the delay in releasing that certificate, or that it was issued in response to a court production order. They say that, as a result, the Federal Court misapprehended the evidence and failed to appreciate how these "“tactical decisions”" hindered their ability to pursue a meaningful judicial review.
[36] It is worth remembering that a section 39 CEA certificate is not necessary for the government to claim that certain information is or reveals a Cabinet confidence or is otherwise covered by public interest privilege. As a matter of constitutional convention and at common law, Cabinet deliberations have long been considered confidential because of the strong public interest in maintaining the secrecy of deliberations among ministers of the Crown. This principle is rooted in the collective dimension of ministerial responsibility. Indeed, the confidentiality of Cabinet deliberations has long been held as a precondition to responsible government, which is a fundamental principle of our system of government. It promotes effective and proper functioning of government through candour, solidarity, and efficiency: see Babcock at paras. 15-18; Carey v. Ontario, 1986 CanLII 7 (SCC), [1986] 2 S.C.R. 637, 35 D.L.R. (4th) 161 [Carey], pp. 664, 670-671 and 673; John Doe v. Ontario (Finance), 2014 SCC 36 at para. 44; Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2024 SCC 4 at paras. 27-31.
[37] Over time, the absolute protection from disclosure that Cabinet documents enjoyed showed signs of erosion, as courts came to realize that the public interest in Cabinet confidences must be balanced with equally important public interests in disclosure. Starting with the famous case of United States v. Nixon, 418 U.S. 683 (1974), this development was quickly followed in the United Kingdom (A.G. v. Jonathan Cape Ltd., [1976] Q.B. 752 and Burmah Oil Co. v. Bank of England, [1980] A.C. 1090), as well as in Australia (Sankey v. Whitlam, (1978), 21 A.L.R. 505) and New Zealand (Environmental Defence Society Inc. v. South Pacific Aluminium Ltd., [1981] 1 N.Z.L.R. 146). Canada eventually followed suit in Smallwood v. Sparling, 1982 CanLII 215 (SCC), [1982] 2 S.C.R. 686, 141 D.L.R. (3d) 395. Later, the Supreme Court reviewed this body of case law in Carey, and firmly held that Cabinet documents must be disclosed unless such disclosure would interfere with the public interest. While the level of the decision-making process must be taken into account, other variables should be considered such as the nature of the policy concerned and the particular contents of the documents (Carey at pp. 670-671). While the burden falls on the government to establish that a document should not be disclosed, a court need not inspect a document when it is clear from its submissions that the document is protected by Cabinet confidence. If a court has doubts as to whether public interest immunity applies, however, it should inspect the document in private to resolve its doubts: British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia, 2020 SCC 20 at para. 103.
[38] In response to these developments in the common law, Parliament (like many other jurisdictions) adopted section 39 of the CEA. Subsection 39(1) allows the Clerk to certify information as confidential. Once this is done, the certified information gains greater protection than at common law, to the extent that the court hearing the matter must refuse disclosure, "“without examination or hearing of the information”". In other words, section 39 of the CEA displaces the common law approach of balancing the public interest in protecting confidentiality and disclosure and by cloaking the certified information with an absolute protection from disclosure, even to the Court. However, as the Supreme Court cautioned in Babcock, such draconian language cannot oust the fundamental principle that official actions must flow from statutory authority clearly granted and properly exercised. From this caveat flows two restrictions: 1) the information for which immunity is claimed must, on its face, fall within subsection 39(1) of the CEA, and 2) the Minister or the Clerk must have properly exercised their discretion (Babcock at para. 39). This means that the certification can be challenged by way of judicial review if a party can present evidence of improper motive in the issuance of the certificate or supporting a claim of improper issuance: Babcock at para. 39; Singh v. Canada (Attorney General) (C.A.), 2000 CanLII 17100 (FCA), [2000] 3 F.C. 185, 183 D.L.R. (4th) 458 at paras. 43 and 50.
[39] This is precisely what the appellants are attempting to do here. They claim that the Clerk issued the section 39 CEA certificate for strategic considerations, after a lengthy delay, and in response to a court production order. These circumstances fall well short of proving an actual nefarious purpose or an improper motive sufficient to draw an adverse inference.
[40] The record shows that the AGC provided a timely objection to the appellants’ Rule 317 request. In a subsequent letter dated December 4, 2020, responding to a request by the appellants for a description of the materials over which Cabinet confidences were claimed, the AGC filed a letter prepared by counsel at the Privy Council Office along with a document describing the particulars of the information over which Cabinet confidences were claimed. This document made clear that the Minister’s submission to the GIC and Council’s record of decision fell squarely within paragraphs 39(2)(a), (c), (d) and (f) of the CEA. The letter also explained that the description of the materials is an alternative to a formal examination by the Clerk under section 39 of the CEA and provided counsel the same description that would be found in the Schedule to a Clerk’s certificate made under that section.
[41] In the absence of any contrary evidence, I am unable to find anything reprehensible or even out of the ordinary in this course of action. The AGC was certainly entitled to rely on the protection afforded by the common law to Cabinet confidences before resorting to the issuance of a certificate by the Clerk pursuant to section 39 of the CEA. Once the Case Management Judge ordered the production of the documents for inspection and with a view to satisfying herself that they should not be disclosed, the AGC was undeniably entitled to file a certificate, as this Court confirmed in Tsleil-Waututh Nation at para. 141. Since the certified material before the GIC, which consisted of the Minister’s submission to the GIC and the GIC’s record of its deliberations and decisions, falls squarely within the categories of confidence listed in subsection 39(2) of the CEA, there is nothing (save for mere speculation) that would provide a rational basis for this Court to draw an adverse inference from the issuance of the section 39 CEA certificate. Drawing an adverse inference is a perilous exercise that is governed by many evidentiary rules; it should not be done lightly (Pfizer Canada Inc. v. Teva Canada Limited, 2016 FCA 161 at paras. 168-170). Here, the appellants fell way short of their burden to show why a negative inference should be drawn.
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