In concluding the section is valid the Court of Appeal reviews the history of privilege claims by the Crown. Since such claims were unknown at the time of Confederation the Court holds they cannot be part of the core jurisdiction of the Superior Court.
Some might ask whether it makes sense to determine the meaning of "core jurisdiction" by reference to what existed in 1867. Perhaps a better approach would be to ask what a Superior Court's role should be today (that seems to be consistent with Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714 speaking of the power conferred "broadly conform" to a power or jurisdiction exercised by a superior, district or county court at the time of Confederation). After all, division of net family property litigation did not exist in 1867 and yet it forms a significant part of today's Superior Court; is the Constitution a living tree or a dead letter? Perhaps these issues are best left for another place?
The Court holds:
[14] In Reference re Amendments to the Residential Tenancies Act (N.S.), [1996] 1 S.C.R. 186 at para. 74, McLachlin J. re-stated as follows the three-part test for determining whether the conferral of jurisdiction on an inferior court or administrative tribunal deprives a s. 96 court of its constitutionally protected jurisdiction, initially laid down by Dickson J. in Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714 at pp. 734-735:
(1) does the power conferred "broadly conform" to a power or jurisdiction exercised by a superior, district or county court at the time of Confederation? (2) if so, is it a judicial power? (3) if so, is the power either subsidiary or ancillary to a predominantly administrative function or necessarily incidental to such a function?
[15] McEvoy v. New Brunswick (A.G.), [1983] 1 S.C.R. 704 holds that s. 96 applies to limit Parliament as well as the provincial legislatures from removing or devolving protected powers to tribunals or statutory courts.
[16]It is common ground that this case falls to be decided on the first branch of the test. In [1995] 4 S.C.R. 725 at para. 15, the first branch was refined to relate to what Lamer C.J. described as the "core or inherent jurisdiction which is integral to their operations." If the power or jurisdiction at issue falls within that "core", it "cannot be removed from the superior courts by either level of government, without amending the Constitution."
[17] The question, then, is this: was the power or jurisdiction to review claims of Crown privilege on grounds of international relations, national defence and national security exercised by superior, district or county courts at the time of Confederation and was that power or jurisdiction essential to the existence of a superior court of inherent jurisdiction and to the preservation of its foundational role within our legal system?
[18] As the motion judge held, at para. 99, there is a long line of authority to the effect that at common law, there was no pre-trial discovery against the Crown: Tomline v. The Queen (1879), 4 Ex. D. 252; Quebec (A.G.) and Keable v. Canada (A.G.), [1979] 1 S.C.R. 218 at pp. 245-246; Waverley (Village) v. Nova Scotia (Acting Minister of Municipal Affairs) (1993), 16 C.P.C. (3d) 64 (N.S.S.C.) at paras. 33-40; Crombie v. The King (1922), 52 O.L.R. 72 (C.A.) at p. 77. As no discovery of any kind was available against the Crown at the time of Confederation, the issue of public interest privilege could not have arisen until legislation enacted in the 1950s made discovery against the Crown in right of Canada possible (Crown Liability Act, S.C. 1952-1953, c. 30, s. 14; Crown Liability (Provincial Court) Regulations, P.C. 1954-1687, ss. 7-8; Peter W. Hogg & Patrick J. Monahan, Liability of the Crown, 3d ed. (Scarborough: Thomson Canada, 2000) at pp. 65-66).
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[31] I assess the relevant historical context and the operation and effect of s. 38 as follows. Pre-trial discovery was not available against the Crown at Confederation and even after discovery against the Crown was made possible by statute, claims of crown privilege based upon international relations, national security and national defence were effectively immune from judicial review or scrutiny.
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[33] Section 38 does not remove anything that falls within the core jurisdiction of the Superior Court and that is protected by s. 96. To the contrary, s. 38 provides for a more generous form of judicial review – albeit in another court – of claims of crown privilege than was ever available in the Superior Court at common law.
[34] I also agree with the motion judge that from the perspective of protecting the Superior Court's "core" jurisdiction, there is little or no practical difference between delegating issues of pre-trial production and disclosure to a Master and the regime that assigns that responsibility to the Federal Court. Under either scheme, issues of production and disclosure are determined before the trial by a judicial officer other than the trial judge and the trial judge is left to decide the case on the merits on the basis of the record that has been defined and refined in the pre-trial procedure.
[35] I therefore conclude under the first branch of the test for an infringement of s. 96 that in relation to pre-trial production and discovery, the jurisdiction that is conferred exclusively on the Federal Court by s. 38 did not fall within the power or jurisdiction exercised by the Superior Court at the time of Confederation. It follows that in relation to pre-trial discovery, s. 38 does not deprive the Superior Court of the core jurisdiction protected by s. 96 of the Constitution Act, 1867.
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