CROWN PRIVILEGE

Abstract

There is little disagreement with the statement that a real public interest exists in the non-disclosure of facts injurious to national defence or diplomatic relations. This article deals, however, with the difficulties encountered when the ground of exclusion is based on injury to the proper function of the public service, where the survival of the state is only indirectly involved in the internal problem. While acknowledging an interest in the smooth functioning of the state, it addresses the competing public interest involved in due administration of justice. It argues that there is a tendency to raise the interest in the proper functioning of the state to an uncalled for level above administration of justice, and focuses largely on the case law supporting this claim. The author further claims that the issue has not been decided by the Supreme Court of Canada. He points to signs that the Court is ready to aid the individual citizen in conflict with bureaucracy by giving a higher priority natural justice and by questioning privative clauses in order to achieve a more balanced consideration of the interests involved.