Sierra Club v. Can. (2002), 287 N.R. 203 (SCC)
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[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Temp. Cite: [2002] N.R. TBEd. AP.023
Atomic Energy of Canada Limited (appellant) v. Sierra Club of Canada (respondent) and The Minister of Finance of Canada, the Minister of Foreign Affairs of Canada, the Minister of International Trade of Canada and the Attorney General of Canada (respondents)
(28020; 2002 SCC 41; 2002 CSC 41)
Indexed As: Sierra Club of Canada v. Canada (Minister of Finance) et al.
Supreme Court of Canada
McLachlin C.J.C. and Gonthier, Iacobucci, Bastarache, Binnie, Arbour and LeBel, JJ.
April 26, 2002.
Summary:
The federal government agreed to provide financial assistance to China related to the construction and sale of two nuclear reactors by Atomic Energy of Canada (AEC). The Sierra Club applied for, inter alia, judicial review of the federal government’s decision not to conduct an environmental assessment under the Canadian Environmental Assessment Act respecting the granting of the financial assistance. AEC was granted inter-vener status. AEC applied to file a supplementary affidavit which attached confidential reports. AEC applied for a confidentiality order under Federal Court Rule 151.
The Federal Court of Canada, Trial Division, in a decision reported at 178 F.T.R. 283, granted leave to file the supplementary affidavit and the attached reports. However, the court denied the confidentiality order. AEC appealed the denial of the confidentiality order. Sierra cross-appealed, arguing that the supplementary affidavit should not have been allowed.
The Federal Court of Appeal, Robertson, J.A., dissenting, in a decision reported at 256 N.R. 1, dismissed the appeal and the cross-appeal. AEC appealed.
The Supreme Court of Canada allowed the appeal and issued the confidentiality order.
Civil Rights – Topic 1803
Freedom of speech or expression – General principles – Freedom of expression – Scope of – The Supreme Court of Canada stated that “Underlying freedom of expression are the core values of (1) seeking the truth and the common good; (2) promoting self-fulfilment of individuals by allowing them to develop thoughts and ideas as they see fit; and (3) ensuring that participation in the political process is open to all persons … Charter jurisprudence has established that the closer the speech in question lies to these core values, the harder it will be to justify a s. 2(b) infringement of that speech under s. 1 of the Charter” – See paragraph 75.
Civil Rights – Topic 1859.1
Freedom of speech or expression – Limitations on – Access to court documents – Rule 151 of the Federal Court Rules, 1998, provided that a court could order that material to be filed be treated as confidential – The Supreme Court of Canada stated that “A confidentiality order under Rule 151 should only be granted when: (1) such an order is necessary in order to prevent a serious risk to an important interest, including a commercial interest, in the context of litigation because reasonably alternative measures will not prevent the risk; and, (2) the salutary effects of the confidentiality order, including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right to free expression, which in this context includes the public interest in open and accessible court proceedings.” – Three important elements were subsumed under the first branch: the risk had to be real and substantial and pose a serious threat to the commercial interest in question; to qualify as an “important commercial interest”, the interest had to be one which could be expressed in terms of a public interest in confidentiality; and the phrase “reasonably alternative measures” required consideration of not only whether reasonable alternatives to a confidentiality order were available, but also to restrict the order as much as is reasonably possible while preserving the commercial interest in question – See paragraphs 53 to 57.
Civil Rights – Topic 1859.1
Freedom of speech or expression – Limitations on – Access to court documents – Sierra sought judicial review of the Crown’s decision to financially assist China in purchasing nuclear reactors from Atomic Energy of Canada (AEC) – AEC intervened and sought to file confidential documents received from Chinese authorities – The Supreme Court of Canada granted AEC a confidentiality order under Federal Court Rule 151 – Disclosure of the documents would impose a serious risk on AEC’s important commercial interest – The preservation of confidential information constituted a sufficiently important commercial interest – The information had been consistently treated as confidential, its disclosure would harm AEC’s commercial interests and was clearly of a confidential nature, having been accumulated with a reasonable expectation of it being kept confidential – There were no reasonably alternative measures to granting the order -The confidentiality order would have substantial salutary effects on AEC’s right to a fair trial and freedom of expression – The order would permit AEC to use the documents in presenting its case and facilitate access to relevant documents in judicial proceedings and assist in the search for truth – Further, there could be a public security interest in maintaining the information’s confidentiality – The deleterious effects of the confidentiality order on the principle of open courts and freedom of expression would be minimal – See paragraphs 58 to 92.
Civil Rights – Topic 1859.1
Freedom of speech or expression – Limitations on – Access to court documents – The Supreme Court of Canada stated that “Since cases involving public institutions will generally relate more closely to the core value of public participation in the political process, the public nature of a proceeding should be taken into consideration when assessing the merits of a confidentiality order. It is important to note that this core value will
always
be engaged where the open court principle is engaged owing to the importance of open justice to a democratic society. However, where the political process is also engaged by the
substance
of the proceedings, the connection between open proceedings and public participation in the political process will increase.” – See paragraph 83 – The court added that this public nature was not necessarily reflected in the media’s desire to probe the facts of the case – See paragraph 85.
Civil Rights – Topic 3224
Trials – Due process, fundamental justice and fair hearings – Civil proceedings – Fairness – Sierra sought judicial review of the Crown’s decision to financially assist China in purchasing nuclear reactors from Atomic Energy of Canada (AEC) – AEC intervened and sought to file confidential documents received from Chinese authorities – AEC sought a confidentiality order under Federal Court Rule 151 – The Supreme Court of Canada stated that “the primary interest that would be promoted by the confidentiality order is the public interest in the right of a civil litigant to present its case, or, more generally, the fair trial right. Because the fair trial right is being invoked in this case in order to protect commercial, not liberty, interests of the appellant, the right to a fair trial in this context is not a Charter right; however, a fair trial for all litigants has been recognized as a fundamental principle of justice … It bears repeating that there are circumstances where, in the absence of an affected Charter right, the proper administration of justice calls for a confidentiality order …” – See paragraph 70.
Evidence – Topic 3007
Documentary evidence – Confidentiality orders – General – [See all
Civil Rights – Topic 1859.1
and
Civil Rights – Topic 3224
].
Practice – Topic 4563
Discovery – Production and inspection of documents – General – Confidentiality orders – [See all
Civil Rights – Topic 1859.1
and
Civil Rights – Topic 3224
].
Cases Noticed:
AB Hassle et al. v. Canada (Minister of National Health and Welfare) et al., [2000] 3 F.C. 360; 253 N.R. 284 (F.C.A.), refd to. [para. 24].
Ethyl Canada Inc. v. Canada (Attorney General) et al. (1998), 54 O.T.C. 57; 17 C.P.C.(4th) 278 (Gen. Div.), refd to. [para. 24].
Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; 102 N.R. 321; 103 A.R. 321, refd to. [para. 30].
Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; 203 N.R. 169; 182 N.B.R.(2d) 81; 463 A.P.R. 81, folld. [para. 36].
Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, folld. [para. 37].
R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 40].
R. v. Mentuck (C.G.) (2001), 277 N.R. 160; 163 Man.R.(2d) 1 (S.C.C.), folld. [para. 43].
R. v. O.N.E. (2001), 279 N.R. 187; 160 B.C.A.C. 161; 261 W.A.C. 161 (S.C.C.), refd to. [para. 43].
A.M. v. Ryan, [1997] 1 S.C.R. 157; 207 N.R. 81; 85 B.C.A.C. 81; 138 W.A.C. 81, refd to. [para. 50].
F.N., Re, [2000] 1 S.C.R. 880; 255 N.R. 250; 191 Nfld. & P.E.I.R. 181; 577 A.P.R. 181, refd to. [para. 55].
Eli Lilly & Co. et al. v. Novopharm Ltd. et al. (1994), 82 F.T.R. 147; 56 C.P.R.(3d) 437 (T.D.), refd to. [para. 56].
AB Hassle et al. Canada (Minister of National Health and Welfare) et al. (1998), 161 F.T.R. 15; 83 C.P.R.(3d) 428 (T.D.), refd to. [para. 60].
Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, refd to. [para. 75].
R. v. Keegstra, [1990] 3 S.C.R. 697; 117 N.R. 1; 114 A.R. 81, refd to. [para. 75].
Statutes Noticed:
Federal Court Rules, 1998, rule 151 [para. 11].
Counsel:
J. Brett Ledger and Peter Chapin, for the appellant;
Timothy J. Howard and Franklin S. Gertler, for the respondent, Sierra Club of Canada;
Graham Garton, Q.C., and J. Sanderson Graham, for the respondents, the Minister of Finance of Canada, the Minister of Foreign Affairs of Canada, the Minister of International Trade of Canada and the Attorney General of Canada.
Solicitors of Record:
Osler, Hoskin & Harcourt, Toronto, Ontario, for the appellant;
Timothy J. Howard, Vancouver; B.C., Franklin S. Gertler, Montréal, Quebec, for the respondent, Sierra Club of Canada;
The Deputy Attorney General of Canada, Ottawa, Ontario, for the respondents, the Minister of Finance of Canada, the Minister of Foreign Affairs of Canada, the Minister of International Trade of Canada and the Attorney General of Canada.
This appeal was heard on November 6, 2001, by McLachlin, C.J.C., and Gonthier, Iacobucci, Bastarache, Binnie, Arbour and LeBel, JJ., of the Supreme Court of Canada. On April 26, 2002, Iacobucci, J., delivered the following judgment for the Court in both official languages.
