"Two New Supreme Court of Canada Cases Examine Judicial Independence, Cabinet Confidentiality, and More" by Ainslie Pierrynowski

Two recent Supreme Court of Canada (SCC) decisions offer a new look into the relationship between the courts and the other branches of government. While these decisions dealt with judges’ salaries, they offer several interesting takeaways for the legal community as a whole.

Background and Procedural History

This summer, the SCC released two companion decisions about judges’ compensation: British Columbia (Attorney General) v Provincial Court Judges’ Association of British Columbia[1] and Nova Scotia (Attorney General) v Judges of the Provincial Court and Family Court of Nova Scotia.[2]To determine judges’ salaries, independent commissions make recommendations to governments. If a government chooses not to follow these recommendations, the government must explain why. To make sure that the government has fulfilled its constitutional duties, the courts can review the government’s decision through a process established in the SCC case Bodner v Alberta.[3]  Bodner set out three criteria that governments need to meet:

• The government must express a legitimate reason for its decision
• This reason must have a factual basis
• The independent commission process must be respected and its purposes (safeguarding judicial independence and depoliticizing judicial compensation) must be achieved.[4]          

In the newest SCC cases, the governments of British Columbia and Nova Scotia decided not to follow the commissions’ recommendations. In each province, an organization representing the judges requested a judicial review of their government’s decision. The organizations asked the governments to disclose confidential Cabinet documents as part of the review. The lower courts in each province determined that the governments must disclose these documents.
 
Summary of Decision

The issue in these cases was whether the governments were required to disclose confidential Cabinet documents for the Bodner reviews. The SCC unanimously decided that the government of British Columbia did not need to disclose the document, but the government of Nova Scotia needed to disclose part of the document.

Justice Karakatsanis (writing for the Court in both cases) explained that it was not enough for a confidential Cabinet document to be relevant to the Bodner criteria. If this were the case, courts would routinely review Cabinet documents. As a result, in Justice Karakatsanis’s words, “Although any inspection of a confidential Cabinet document undermines Cabinet confidentiality to some extent, judicial inspection of a document that concerns Cabinet deliberations about the judiciary would undermine it more significantly.”[5]

The party requesting the Cabinet document needs to show that there is a reason to believe that the document might contain evidence showing that the government did not fulfill its constitutional obligations. Even if the document indicates that the government failed to complete its duties, the court can still decide that the document should not be produced for other reasons. For instance, it may be in the public interest for the document to remain confidential.[6]

In Provincial Court Judges’ Association of British Columbia, the SCC found that the document should not be disclosed because there was no basis to believe that the document may provide evidence that the government did not meet its constitutional obligations. Conversely, in Judges of the Provincial Court and Family Court of Nova Scotia, the SCC determined that part of the document should be disclosed. As Justice Karakatsanis wrote, “The exclusion of this evidence from the record would undermine the reviewing court’s ability to deal with central issues on Bodner review…The interests of the administration of justice thus strongly favour the disclosure of these parts of the Attorney General’s report [the Cabinet document].”[7] 
 
Lessons Learned

While both cases focused on judicial compensation, these decisions do not only have implications for judges. The cases offer two main take-aways for the broader legal community.

​First, for lawyers who interact with government actors, these decisions are a reminder that while Cabinet confidentiality is not absolute, exceptions to this convention tend to have high thresholds. Justice Karakatsanis’s emphasis on limiting exceptions to Cabinet confidentiality recalls the earlier SCC decision Babcock v Canada (Attorney General).[8] Babcock established that section 39 of the Canada Evidence Act, which protects certain Cabinet documents from disclosure, was constitutional.[9] According to Chief Justice McLachlin (as she then was), writing for the court, “Those charged with the heavy responsibility of making government decisions must be free to discuss all aspects of the problems that come before them and to express all manner of views, without fear that what they read, say or act on will later be subject to public scrutiny… The process of democratic governance works best when Cabinet members charged with government policy and decision-making are free to express themselves around the Cabinet table unreservedly.”[10] 

Second, these cases affirm the importance of judicial independence. While judicial independence is rooted in the Constitution Act, 1867,[11] over time case law has helped to establish what judicial independence means in practice. Provincial Court Judges’ Association of British Columbia and Judges of the Provincial Court and Family Court of Nova Scotia strike a nuanced balance between the need for government transparency and the importance of Cabinet confidentiality, as expressed in Babcock. In the words of Justice Karakatsanis, “Bodner review generally opposes two branches of the state: the members of the judiciary challenging the government’s response and the attorney general defending it…the interests of the three branches may, whether directly or indirectly, be at stake.”[12]

Overall, both of these recent decisions offer new insight into how the judiciary interacts with the other branches of government. The implications of these cases extend beyond judges’ salaries, into fundamental questions of democracy, independence, and transparency.
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This was a guest post written by Ainslie Pierrynowksi, a Second Year JD Candidate at the University of Toronto, Faculty of Law.

Flex Legal is happy to provide an opportunity to law school students seeking publishing opportunities. Have a topic in mind that might be of interest to our lawyer readers? Case comment? New legislation? Reach out and let us know: info@flexlegalnetwork.com

[1] 2020 SCC 20 [Provincial Court Judges’ Association of British Columbia].

[2] 2020 SCC 21 [Judges of the Provincial Court and Family Court of Nova Scotia].

[3] 2005 SCC 44.

[4] Ibid at para 31.

[5] Provincial Court Judges’ Association of British Columbia, supra note 1 at para 72.

[6] Provincial Court Judges’ Association of British Columbia, supra note 1 at para 87.

[7] Judges of the Provincial Court and Family Court of Nova Scotia, supra note 2 at para 72.

[8] 2002 SCC 57 [Babcock].

[9] See Canada Evidence Act, RSC 1985, c C-5, s 39.

[10] Babcock, supra note 9 at para 18.

[11] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5, ss ss 96 and 100. See also Reference re Remuneration of Judges of the Provincial Court (PEI), (1997) 3 SCR 3 at para 2.

[12] Provincial Court Judges’ Association of British Columbia, supra note 2 at para 71. 

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