British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia

British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia
Collection
Supreme Court Judgments
Date
2020-07-31
Neutral citation
2020 SCC 20
Report
[2020] 2 SCR 506
Case number
38381
Judges
Wagner, Richard; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas
On appeal from
British Columbia
Subjects
Constitutional law
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia, 2020 SCC 20, [2020] 2 S.C.R. 506
Appeal Heard: December 9, 2019 Judgment Rendered: July 31, 2020 Docket: 38381
Between:
Attorney General of British Columbia
Appellant
and
Provincial Court Judges’ Association of British Columbia
Respondent
- and -
Attorney General of Canada, Attorney General of Ontario, Attorney General of Quebec, Attorney General of Saskatchewan, Attorney General of Alberta, Canadian Superior Courts Judges Association, Canadian Bar Association, Canadian Association of Provincial Court Judges, Canadian Taxpayers Federation and Canadian Civil Liberties Association
Interveners
Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.
Reasons for Judgment: (paras. 1 to 121)
Karakatsanis J. (Wagner C.J. and Abella, Moldaver, Côté, Brown, Rowe, Martin and Kasirer JJ. concurring)
Attorney General of British Columbia Appellant
v.
Provincial Court Judges’ Association of British Columbia Respondent
and
Attorney General of Canada,
Attorney General of Ontario,
Attorney General of Quebec,
Attorney General of Saskatchewan,
Attorney General of Alberta,
Canadian Superior Courts Judges Association,
Canadian Bar Association,
Canadian Association of Provincial Court Judges,
Canadian Taxpayers Federation and
Canadian Civil Liberties Association Interveners
Indexed as: British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia
2020 SCC 20
File No.: 38381.
2019: December 9; 2020: July 31.
Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.
on appeal from the court of appeal for british columbia
Constitutional law — Judicial independence — Judicial remuneration — Judicial compensation commission making recommendations to provincial Attorney General about remuneration, allowances and benefits of provincial judges — Attorney General making submission to Cabinet concerning commission’s recommendations and government’s response — Legislative Assembly passing resolution rejecting commission’s recommended increase in salary — Judges petitioning for judicial review of Legislative Assembly’s resolution — Whether Cabinet submission should form part of record on judicial review.
In October 2016, the British Columbia judicial compensation commission recommended an 8.2 percent increase in the salary of provincial judges in 2017‑18. The Attorney General made a submission to Cabinet concerning the commission’s recommendations, and then tabled the government’s proposed response to the commission’s report and proposed a resolution rejecting the commission’s recommended salary increase and adopting a 3.8 percent increase instead. The Legislative Assembly passed the resolution. The Provincial Court Judges’ Association petitioned for judicial review of the resolution and sought an order to require the Attorney General to produce the Cabinet submission relied on in preparing the government’s response. The master hearing the motion ordered the Attorney General to produce the Cabinet submission. Appeals by the Attorney General from the master’s decision to the Supreme Court of British Columbia and then to the Court of Appeal were dismissed.
Held: The appeal should be allowed and the master’s order for production of the Cabinet submission quashed.
A government must give specific reasons justifying any departure from the recommendations of a judicial compensation commission. The government’s response to the commission’s recommendations is subject to a limited form of judicial review as described in Bodner v. Alberta, 2005 SCC 44, [2005] 2 S.C.R. 286. Bodner review is the mechanism for ensuring that the government respects the commission process and for safeguarding the public confidence in the administration of justice that process serves to protect. The standard of justification to uphold the government’s response is that of rationality. Bodner sets out a three‑part test for determining whether a government’s decision to depart from a commission’s recommendation meets this standard: (1) whether the government has articulated a legitimate reason for departing from the commission’s recommendations; (2) whether the government’s reasons rely upon a reasonable factual foundation; and (3) whether the commission process has been respected and its purposes — preserving judicial independence and depoliticizing the setting of judicial remuneration — have been achieved.
The limited nature of Bodner review, the role of the reviewing court and the purpose of the process have implications for the evidence considered by the reviewing court. The rules of evidence and production must be applied in a manner that reflects the unique features of Bodner review, and respects both judicial independence and the confidentiality of Cabinet decision making. The record on Bodner review necessarily includes any submissions made to the commission by the government, judges and others; the commission’s report, including its recommendations; and the government’s response to the recommendations. Certain forms of additional evidence are admissible if they are relevant to determining whether any part of the Bodner test has been met, including evidence aimed at calling into question the reasonableness of the factual foundation relied on by the government, the government’s lack of meaningful engagement with or respect for the commission process or whether the government’s response was grounded in an improper or colourable purpose. To those ends, the party seeking review can ask that the government produce evidence in its possession. Since a Bodner review often concerns decisions in which Cabinet plays a part, a party seeking review may request the production of a confidential Cabinet document.
Generally, what is in issue in a Bodner review is whether a government failed to meet its constitutional obligations flowing from the principle of judicial independence in its response to a commission’s recommendations. The relevance of any proposed additional evidence must therefore be tested in relation to the issues that the court must determine on such a review. To be relevant, the proposed evidence must contain something that tends to address a fact concerning one of the steps of the test established in Bodner.
However, something more than relevance is needed to strike the appropriate balance between respecting Cabinet confidentiality and maintaining the overall integrity of Bodner review. 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. Accordingly, special considerations arise when the party seeking Bodner review asks the government to produce a document related to Cabinet decision making. The party seeking review must point to something in the record, including otherwise admissible evidence, that supports its view that the document may tend to show that the government response failed to meet one or more parts of the Bodner test. It is not enough to simply say that the document was before the decision‑maker or that it would provide additional background or context for the reviewing court.
If the party seeking review makes the requisite showing — that there is some basis to believe that the document may contain evidence which tends to show that the government failed to meet one of the requirements described in Bodner — the government must produce it for the court’s examination. The reviewing court must then examine the document in private to determine whether it, in fact, provides some evidence which tends to show that the government failed to meet one of the parts of the Bodner test. The document must be of assistance in challenging the legitimacy of the government’s reasons, the reasonableness of the factual foundation it relied on, the respect it has shown the commission process or whether the objectives of the process have been achieved.
Even if the document meets this test, its production remains subject to any other rule of evidence that bars its disclosure, such as public interest immunity. This doctrine prevents the disclosure of a document where the court is satisfied that the public interest in keeping the document confidential outweighs the public interest in its disclosure. Public interest immunity requires a careful balancing of these competing public interests, which must be weighed with reference to a specific document in the context of a particular proceeding. The government has the burden of establishing that a document should not be disclosed because of public interest immunity. In the case of confidential Cabinet documents, since there will be a strong public interest in keeping a document concerning Cabinet deliberations confidential, it must be outweighed by a still stronger public interest to warrant disclosure. The main factors relevant to balancing the public interests in confidentiality and disclosure are identified in Carey v. Ontario, [1986] 2 S.C.R. 637: the level of the decision‑making process; the nature of the policy concerned; the contents of the documents; the timing of disclosure; the interests of the administration of justice; and whether the party seeking the production of the documents alleges unconscionable behaviour on the part of the government.
In the Bodner review context, various factors will often weigh in favour of keeping a document confidential. The Cabinet decision‑making process is among the highest levels of decision making within the executive. Judicial remuneration is an important and sensitive area of public policy. The contents of a document concerning Cabinet deliberations may well reflect the views of individual ministers of the Crown and reveal disagreement among ministers; as a result, its contents will frequently be highly sensitive. Depending on the contents of the document, the timing may also weigh in favour of keeping the document confidential.
The interests of the administration of justice encompass a broad set of considerations, including the importance of the case and the need or desirability of producing the document. In the Bodner review context, these considerations cut both ways. Although such reviews are of great importance, the fact that a party seeks production of a relevant confidential Cabinet document in this context is not itself a general basis for disclosure. When considering the interests of the administration of justice, the focus must remain on the degree to which the document bears on what is at issue in the litigation. If the document tends to establish that the government set out to provide misleading public reasons for its response to the commission’s recommendations, relied on a fundamentally flawed factual foundation, acted with an improper or colourable purpose, or was indifferent or disrespectful towards the commission process, this bears so directly — and so determinately — on the outcome of the Bodner review that to exclude the document would be contrary to the interests of the administration of justice. By contrast, if a Cabinet document’s impact on the Bodner review would be limited, and if its exclusion from the record could hardly keep the reviewing court from adjudicating the issues on their merits, the probative value of such evidence might not weigh heavily enough to warrant disclosure.
In the instant case, the Association did not meet the threshold necessary to compel production of the Cabinet document for judicial inspection. The Association failed to provide any evidence or point to any circumstances that suggest that the Cabinet submission may indicate that the government did not meet the standard required by Bodner. There is nothing on the face of the record that indicates the Cabinet submission may contain some evidence which tends to show that the government failed to meet a constitutional requirement. Furthermore, it is not sufficient to point to prior litigation in which the government relied on an inappropriate consideration — as revealed in a past Cabinet submission produced as part of the record — in order to make the Cabinet submission in the present case relevant. Something more would be required for there to be reason to believe that the submission may contain evidence that would tend to show that the government failed to meet a requirement described in Bodner.
Since the Association has failed to make the requisite threshold showing, the Attorney General need not produce the document for examination by the Court. It is unnecessary to determine whether any other rule of evidence, such as public interest immunity, would apply so as to permit the Attorney General to refuse to produce the Cabinet submission.
Cases Cited
Explained: Provincial Court Judges’ Assn. of New Brunswick v. New Brunswick (Minister of Justice); Ontario Judges’ Assn. v. Ontario (Management Board); Bodner v. Alberta; Conférence des juges du Québec v. Quebec (Attorney General); Minc v. Quebec (Attorney General), 2005 SCC 44, [2005] 2 S.C.R. 286; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3; Carey v. Ontario, [1986] 2 S.C.R. 637; referred to: Nova Scotia (Attorney General) v. Judges of the Provincial Court and Family Court of Nova Scotia, 2020 SCC 21, [2020] 2 S.C.R. 556; Stonechild, Re, 2007 SKCA 74, 304 Sask. R. 1; Beauregard v. Canada, [1986] 2 S.C.R. 56; Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, [2014] 1 S.C.R. 433; Conférence des juges de paix magistrats du Québec v. Quebec (Attorney General), 2016 SCC 39, [2016] 2 S.C.R. 116; Ell v. Alberta, 2003 SCC 35, [2003] 1 S.C.R. 857; Mackin v. New Brunswick (Minister of Finance), 2002 SCC 13, [2002] 1 S.C.R. 405; Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525; Wells v. Newfoundland, [1999] 3 S.C.R. 199; Delios v. Canada (Attorney General), 2015 FCA 117, 100 Admin. L.R. (5th) 301; Sobeys West Inc. v. College of Pharmacists of British Columbia, 2016 BCCA 41, 80 B.C.L.R. (5th) 243; R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433; Lax Kw’alaams Indian Band v. Canada (Attorney General), 2011 SCC 56, [2011] 3 S.C.R. 535; Provincial Court Judges’ Assn. of British Columbia v. British Columbia (Attorney General), 2012 BCSC 1022, 39 Admin. L.R. (5th) 130; Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), [1989] 2 S.C.R. 49; Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455; New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319; Doucet‑Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3; Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3; MacKeigan v. Hickman, [1989] 2 S.C.R. 796; Canada (House of Commons) v. Vaid, 2005 SCC 30, [2005] 1 S.C.R. 667; Chagnon v. Syndicat de la fonction publique et parapublique du Québec, 2018 SCC 39, [2018] 2 S.C.R. 687; Reference re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753; Reference re Secession of Quebec, [1998] 2 S.C.R. 217; Babcock v. Canada (Attorney General), 2002 SCC 57, [2002] 3 S.C.R. 3; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1998] 1 S.C.R. 3; Quebec (Commission des droits de la personne) v. Attorney General of Canada, [1982] 1 S.C.R. 215; R. v. D.L.W., 2016 SCC 22, [2016] 1 S.C.R. 402; R. v. Ahmad, 2011 SCC 6, [2011] 1 S.C.R. 110; Smallwood v. Sparling, [1982] 2 S.C.R. 686; Bisaillon v. Keable, [1983] 2 S.C.R. 60; Ainsworth Lumber Co. v. Canada (Attorney General), 2003 BCCA 239, 14 B.C.L.R. (4th) 302; Telezone Inc. v. Canada (Attorney General) (2004), 69 O.R. (3d) 161; Michaud v. Quebec (Attorney General), [1996] 3 S.C.R. 3; R. v. Barros, 2011 SCC 51, [2011] 3 S.C.R. 368; Somerville v. Scottish Ministers, [2007] UKHL 44, [2007] 1 W.L.R. 2734; Al Rawi v. Security Service, [2011] UKSC 34, [2012] 1 A.C. 531; Conway v. Rimmer, [1968] A.C. 910; Nova Scotia Provincial Judges’ Association v. Nova Scotia (Attorney General), 2018 NSSC 13, 409 C.R.R. (2d) 117; Nova Scotia (Attorney General) v. Judges of the Provincial Court and Family Court of Nova Scotia, 2018 NSCA 83, 429 D.L.R. (4th) 359; Newfoundland (Treasury Board) v. N.A.P.E., 2004 SCC 66, [2004] 3 S.C.R. 381; Commonwealth v. Northern Land Council (1993), 176 C.L.R. 604; Air Canada v. Secretary of State for Trade, [1983] 2 A.C. 394.
Statutes and Regulations Cited
Attorney General Act, R.S.B.C. 1996, c. 22, s. 2(j).
Canada Evidence Act , R.S.C. 1985, c. C‑5, ss. 37 to 39 .
Canadian Charter of Rights and Freedoms , s. 11( d ) .
Code of Civil Procedure, CQLR, c. C‑25.01, art. 283.
Constitution Act, R.S.B.C. 1996, c. 66, s. 10(3).
Constitution Act, 1867 , preamble, ss. 11, 18, 54, 90 to 92, 96 to 101, 100 to 102, 106, 126.
Constitution Act, 1982 , s. 42(1)( d ) .
Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sch. 17, s. 13(2).
Crown Proceeding Act, R.S.B.C. 1996, c. 89, s. 9.
Judicial Compensation Act, S.B.C. 2003, c. 59, ss. 2, 5(1), (3), (5), (5.1), (5.2), 6(1), (2), (3), (4), 7.1, 8(1).
O.C. 213/2017.
Proceedings against the Crown Act, R.S.N.S. 1989, c. 360, s. 11.
Supreme Court Civil Rules, B.C. Reg. 168/2009, r. 22‑1(4)(c).
Authors Cited
d’Ombrain, Nicholas. “Cabinet secrecy” (2004), 47 Canadian Public Administration 332.
Forcese, Craig, and Aaron Freeman. The Laws of Government: The Legal Foundations of Canadian Democracy, 2nd ed. Toronto: Irwin Law, 2011.
Heard, Andrew. Canadian Constitutional Conventions: The Marriage of Law & Politics, 2nd ed. Oxford: Oxford University Press, 2014.
Royer, Jean‑Claude, et Catherine Piché. La preuve civile, 5e éd. Montréal: Yvon Blais, 2016.
APPEAL from a judgment of the British Columbia Court of Appeal (Bauman C.J.B.C. and Harris and Dickson JJ.A.), 2018 BCCA 394, 19 B.C.L.R. (6th) 188, 430 D.L.R. (4th) 660, 48 Admin. L.R. (6th) 279, [2018] B.C.J. No. 3445 (QL), 2018 CarswellBC 2776 (WL Can.), affirming a decision of Hinkson C.J.S.C., 2018 BCSC 1390, 19 B.C.L.R. (6th) 168, [2018] B.C.J. No. 2995 (QL), 2018 CarswellBC 2158 (WL Can.), affirming an order of Master Muir, 2018 BCSC 1193, [2018] B.C.J. No. 1410 (QL), 2018 CarswellBC 1891 (WL Can.). Appeal allowed.
Stein K. Gudmundseth, Q.C., Andrew D. Gay, Q.C., and Clayton J. Gallant, for the appellant.
Joseph J. Arvay, Q.C., and Alison M. Latimer, for the respondent.
Michael H. Morris and Marilyn Venney, for the intervener the Attorney General of Canada.
Sarah Kraicer and Andrea Bolieiro, for the intervener the Attorney General of Ontario.
Brigitte Bussières and Robert Desroches, for the intervener the Attorney General of Quebec.
Thomson Irvine, Q.C., for the intervener the Attorney General of Saskatchewan.
Doreen C. Mueller, for the intervener the Attorney General of Alberta.
Pierre Bienvenu, Azim Hussain and Jean‑Simon Schoenholz, for the intervener the Canadian Superior Courts Judges Association.
Guy J. Pratte, Ewa Krajewska and Neil Abraham, for the intervener the Canadian Bar Association.
Steven M. Barrett and Colleen Bauman, for the intervener the Canadian Association of Provincial Court Judges.
Adam Goldenberg and Stephanie Willsey, for the intervener the Canadian Taxpayers Federation.
Andrew K. Lokan and Lauren Pearce, for the intervener the Canadian Civil Liberties Association.
The judgment of the Court was delivered by
[1] Karakatsanis J. — This appeal arises in litigation that implicates the relationship between two branches of the state. It requires this Court to balance several constitutional imperatives relating to the administration of justice and the separation of powers between the executive, legislative and judicial branches of the state: the financial dimension of judicial independence; the shared responsibility of the executive and legislature to make decisions about public money; and the public interest in ensuring the executive can conduct its internal business in confidence.
[2] This appeal, along with its companion appeal, Nova Scotia (Attorney General) v. Judges of the Provincial Court and Family Court of Nova Scotia, 2020 SCC 21, [2020] 2 S.C.R. 556, asks whether a Cabinet submission concerning a government’s response to a judicial compensation commission’s recommendations is properly part of the record on a judicial review of the government’s response. If so, the further issue arises whether the Attorney General of British Columbia should nevertheless be permitted to refuse to produce the submission on grounds of public interest immunity.
[3] The British Columbia courts found that the confidential Cabinet document requested by the Provincial Court Judges’ Association of British Columbia was relevant and not protected by public interest immunity, and ordered that the Attorney General produce it.
[4] In my view, they were wrong to do so.
[5] In its judicial independence case law, this Court has consistently sought to strike a balance between several competing constitutional considerations by establishing a unique process for setting judicial remuneration, backed up by a focused, yet robust form of judicial review described in Bodner v. Alberta, 2005 SCC 44, [2005] 2 S.C.R. 286.[1] In resolving this appeal, the rules of evidence and production must be applied in a manner that reflects the unique features of the limited review described in Bodner, and respects both judicial independence and the confidentiality of Cabinet decision making.
[6] For the reasons that follow, where a party seeking Bodner review requests that the government produce a document relating to Cabinet deliberations, it must first establish that there is some basis to believe that the document may contain evidence which tends to show that the government failed to meet one of the requirements described in Bodner. Only then would the government be required to produce the document for judicial inspection. If the document does in fact provide some evidence which tends to show that the government’s response does not comply with the constitutional requirements, the court can then determine whether its production is barred by public interest immunity or another rule of evidence invoked by the government.
[7] Public interest immunity requires a careful balancing between the competing public interests in confidentiality and disclosure. Since there will be a strong public interest in keeping a document concerning Cabinet deliberations confidential, it must be outweighed by a still stronger public interest to warrant the document’s disclosure. In the Bodner context, the strength of the public interest in disclosure will often depend on the importance of the document to determining the issues before the court in the Bodner review.
[8] Here, the Provincial Court Judges’ Association did not meet the threshold necessary to compel production of a confidential Cabinet document for judicial inspection. While this is not a high bar, it is not met simply by showing that the government considered the Cabinet document before making its response. I would allow the appeal and quash the order for production of the Cabinet submission.
I. Background
A. Judicial Compensation Act, S.B.C. 2003, c. 59
[9] In the Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3 (Provincial Judges Reference), this Court set out the constitutional baseline for making changes to judicial remuneration. The Judicial Compensation Act implements that baseline in British Columbia.
[10] The Judicial Compensation Act provides for the appointment of a triennial judicial compensation commission to make recommendations about the remuneration, allowances and benefits of provincial judges and judicial justices: ss. 2 and 5(1). The commission must consider a prescribed set of factors and may consider other factors, provided it justifies their relevance: s. 5(5), (5.1) and (5.2). The commission communicates its recommendations in a final report to the Attorney General: s. 5(3).[2]
[11] Upon receipt of the commission’s report, the Attorney General must then lay the report before the Legislative Assembly of British Columbia within a statutory timeline: s. 6(1). The Attorney General must also advise the Assembly that if it does not reject the commission’s recommendations within a statutory timeline, the recommendations will go into effect: s. 6(1) and (3). The Assembly can then pass a resolution rejecting one or more recommendations and set judicial remuneration, allowances and benefits: s. 6(2). The resolution has binding legal effect: ss. 6(4) and 8(1).
B. Judicial Compensation Commission’s Recommendations and Government’s Response
[12] In October 2016, the Judicial Compensation Commission submitted its final report to the Attorney General and made recommendations for the 2017‑20 period. The commission recommended an 8.2 percent increase in the salary of provincial judges in 2017‑18 and a 1.5 percent increase in both 2018‑19 and 2019‑20.[3] The commission also recommended that the Provincial Court Judges’ Association be reimbursed for the entirety of its costs of participating in the commission process.
[13] At some point after the commission submitted its report, the Attorney General made a submission to Cabinet concerning the commission’s recommendations and the government’s response. The Cabinet submission is not in the record before this Court and was not put before the courts below. Moreover, there is no evidence in the record about what the submission might contain.
[14] Having laid the commission’s report before the Legislative Assembly in September 2017, the Attorney General tabled the government’s proposed response to the commission’s report in October 2017. The Attorney General did not table the Cabinet submission and there is no indication in the record that any member of the Legislative Assembly other than those serving in Cabinet was aware of the contents of the submission.
[15] The Attorney General moved to pass a resolution rejecting the commission’s recommended increase in the salary of provincial judges and adopting a 3.8 percent increase in 2017‑18 and a 1.5 percent increase in both 2018‑19 and 2019‑20.[4] The Attorney General also proposed reducing the recommended reimbursement for the Provincial Court Judges’ Association’s costs of participating in the commission process from approximately $93,000 to about $66,000 in accordance with the formula established by s. 7.1 of the Judicial Compensation Act. With the support of government and opposition members, the Legislative Assembly passed the resolution.
[16] The Provincial Court Judges’ Association petitioned for judicial review of the Legislative Assembly’s resolution. Among other things, the Provincial Court Judges’ Association asked to have the resolution quashed and sought a declaration that the government’s response and the resolution were inconsistent with the Judicial Compensation Act and with the constitutional principle of judicial independence.
[17] In anticipation of the hearing of their petition on the merits, the Provincial Court Judges’ Association asked the Attorney General to produce the Cabinet submission relied on in preparing the government’s response. The Attorney General refused, so the Association sought an order to require the Attorney General to produce the submission: see Supreme Court Civil Rules, B.C. Reg. 168/2009, r. 22‑1(4)(c).
II. Procedural History
A. Supreme Court of British Columbia, 2018 BCSC 1193 (Master Muir)
[18] The Provincial Court Judges’ Association’s motion was initially heard by a Supreme Court of British Columbia master. The master noted that the Attorney General did not contest that the government’s response was informed by a detailed submission to Cabinet: para. 9 (CanLII).
[19] Turning to relevance, while acknowledging that the government had not referred to or relied on the submission to Cabinet in making its decision, the master concluded that the submission was relevant to the Bodner review and specifically to whether the government relied on a reasonable factual foundation in developing its response to the commission’s recommendation, and whether its response demonstrates meaningful engagement with the commission process: paras. 9 and 18‑21.
[20] Regarding public interest immunity, the master explained that the Attorney General did not provide any specific evidence of harm that would result from the production of the Cabinet submission: para. 23. The importance of review of the government’s response and the need for transparency outweighed the public interest in its remaining confidential: paras. 23 and 27. The master ordered the Attorney General to produce the Cabinet submission: para. 28.
B. Supreme Court of British Columbia, 2018 BCSC 1390, 19 B.C.L.R. (6th) 168 (Hinkson C.J.S.C.)
[21] The Supreme Court of British Columbia dismissed the appeal from the master’s decision. Like the master, the court did not examine the Cabinet submission: para. 45.
[22] Hinkson C.J.S.C. found no error in the master’s conclusion that the Cabinet submission was relevant, agreeing that the submission was relevant to the issue whether the government respected the commission process such that the overall objectives of the process were achieved: paras. 34‑35.
[23] The court found no error in the master’s conclusion that public interest immunity did not apply based on the factors identified in Carey v. Ontario, [1986] 2 S.C.R. 637. The court emphasized that the submission related to the subject matter of the litigation and that the Attorney General did not offer in any evidence that any particular harm would flow from disclosure: para. 46.
C. Court of Appeal for British Columbia, 2018 BCCA 394, 19 B.C.L.R. (6th) 188 (Bauman C.J.B.C., Harris and Dickson JJ.A.)
[24] The Court of Appeal for British Columbia dismissed the Attorney General’s further appeal from the Supreme Court’s decision. Writing for the Court of Appeal, Bauman C.J.B.C. explained that although the Legislative Assembly is the decision‑maker under the Judicial Compensation Act, the Attorney General prepares the government’s draft response for approval by Cabinet before presenting it to the Legislative Assembly: para. 9. Cabinet is thus directly involved in the decision‑making process.
[25] The Court of Appeal concluded that the Cabinet submission was necessarily relevant given that it informed the government’s response to the commission’s recommendations: paras. 9 and 16. Since Cabinet was “a primary actor in the impugned ‘government response’ . . ., the Cabinet submission is clearly ‘evidence which was before the administrative decision‑maker’” and should be included in the record on judicial review: para. 19, quoting Stonechild, Re, 2007 SKCA 74, 304 Sask. R. 1, cited as Hartwig v. Saskatchewan (Commission of Inquiry), at para. 33. The Court of Appeal also affirmed Hinkson C.J.S.C.’s analysis on public interest immunity: para. 22.
III. Issues
[26] This appeal raises two issues: (a) whether the Cabinet submission in this case should form part of the record on Bodner review and (b) whether the Cabinet submission is protected by public interest immunity.
IV. Analysis
A. Judicial Independence and the Nature of Bodner Review
[27] This appeal arises in the context of review of a government’s response to a judicial compensation commission’s recommendations. Such review aims to safeguard judicial independence.
[28] The constitutional principle of judicial independence flows from the recital in the preamble to the Constitution Act, 1867 that our country is to have a “Constitution similar in Principle to that of the United Kingdom”, ss. 96 to 101 of the Constitution Act, 1867 , s. 11( d ) of the Canadian Charter of Rights and Freedoms and s. 42(1)( d ) of the Constitution Act, 1982 : Beauregard v. Canada, [1986] 2 S.C.R. 56, at pp. 72‑73; Provincial Judges Reference, at paras. 84 and 105‑9; Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, [2014] 1 S.C.R. 433, at para. 94; Conférence des juges de paix magistrats du Québec v. Quebec (Attorney General), 2016 SCC 39, [2016] 2 S.C.R. 116, at para. 31.
[29] These provisions and the broader principle of judicial independence serve not only to protect the separation of powers between the branches of the state and thus, the integrity of our constitutional structure, but also to promote public confidence in the administration of justice: Ell v. Alberta, 2003 SCC 35, [2003] 1 S.C.R. 857, at paras. 21‑23; Conférence des juges de paix magistrats, at para. 31. They are fundamental to the rule of law and to democracy in Canada.
[30] The overarching principle of judicial independence applies to all courts, whether of civil or criminal jurisdiction and whether their judges are appointed by federal, provincial or territorial authorities: Provincial Judges Reference, at para. 106; Ell, at paras. 21‑24; Conférence des juges de paix magistrats, at para. 32.
[31] The three core characteristics of judicial independence are security of tenure, financial security and administrative independence: Provincial Judges Reference, at para. 118. The characteristic at issue in this appeal — financial security — in turn has three components, “which all flow from the constitutional imperative that . . . the relationship between the judiciary and the other branches of government be depoliticized”: para. 131 (emphasis in original). First, absent a “dire and exceptional financial emergency precipitated by unusual circumstances”, a government cannot change judicial remuneration parameters without first seeking the recommendations of an independent body, a “commission”: paras. 133 and 137. (Government can, depending on the context, mean the executive, legislature or legislative assembly.) Second, judges cannot engage in negotiations with the government over remuneration: para. 134. Finally, judicial remuneration cannot fall below the basic minimum level required for the office of a judge: para. 135.
[32] More specifically, this appeal concerns the first component of financial security: the convening of a judicial compensation commission to make recommendations concerning judicial remuneration. The commission charged with making such recommendations must be independent, effective and objective: Provincial Judges Reference, at para. 133.
[33] The effectiveness requirement means that the commission must be regularly convened, that no changes can be made to remuneration until the commission submits its report and that “the reports of the commission must have a meaningful effect on the determination of judicial salaries”: Provincial Judges Reference, at paras. 174‑75 and 179; see also Bodner, at para. 29.
[34] To ensure that the commission’s recommendations have a meaningful effect, the government must formally respond to the commission’s report: Provincial Judges Reference, at para. 179; Bodner, at para. 22. Because of the executive and legislature’s shared constitutional responsibility to make decisions about the expenditure of public money,[5] the commission’s recommendations are not binding (unless the legislature so provides). The government must, however, give specific reasons justifying any departure from the recommendations: Provincial Judges Reference, at para. 180; Bodner, at paras. 18 and 20‑21; Conférence des juges de paix magistrats, at para. 35.
[35] To hold a government to its constitutional obligations in jurisdictions where a commission’s recommendations are not binding, the government’s response to the commission’s recommendations is subject to what this Court described in Bodner as a “limited form of judicial review”: paras. 29 and 42. The standard of justification to uphold the government’s response is that of “rationality”: Provincial Judges Reference, at paras. 183‑84; Mackin v. New Brunswick (Minister of Finance), 2002 SCC 13, [2002] 1 S.C.R. 405, at para. 57; Bodner, at para. 29. Both the standard of justification and the test used to measure the government’s response against that standard are “deferential”: Bodner, at paras. 30, 40 and 43. Both the fact that the government remains ultimately responsible for setting judicial compensation and the fact that the nature of a Bodner review is limited serve to balance the constitutional interests at stake.
[36] Building on the approach established by the Provincial Judges Reference, in Bodner, at para. 31, this Court set out a three‑part test for determining whether a government’s decision to depart from a commission’s recommendation meets the rationality standard:
(1) Has the government articulated a legitimate reason for departing from the commission’s recommendations?
(2) Do the government’s reasons rely upon a reasonable factual foundation? and
(3) Viewed globally, has the commission process been respected and have the purposes of the commission — preserving judicial independence and depoliticizing the setting of judicial remuneration — been achieved?
[37] Under the first two parts of the test, the focus is on the reasons given by government for departing from the commission’s recommendations: Bodner, at paras. 32‑33 and 36. The government “must respond to the [commission’s] recommendations” by “giv[ing] legitimate reasons for departing from or varying them”: paras. 23‑24. The reasons must “show that the commission’s recommendations have been taken into account and must be based on [a reasonable factual foundation] and sound reasoning”: paras. 25‑26. The reasons must also “articulat[e] the grounds for rejection or variation”, “reveal a consideration of the judicial office and an intention to deal with it appropriately”, “preclude any suggestion of attempting to manipulate the judiciary” and “reflect the underlying public interest in having a commission process, being the depoliticization of the remuneration process and the need to preserve judicial independence”: para. 25.
[38] The third part of the Bodner test looks to whether the government has respected the commission process and, more broadly, whether the purposes of that process have been achieved: paras. 30‑31, 38 and 43. This new part of the test was added by this Court in an effort to achieve the “unfulfilled” hopes this Court had in the Provincial Judges Reference of depoliticizing the process of setting judicial remuneration and thereby preserving judicial independence: paras. 10‑12 and 31. The third step in the Bodner test requires the court to take a global perspective and ask whether the government demonstrated respect for the judicial office by engaging meaningfully with the commission process: see paras. 25, 31 and 38.
[39] However, this addition in Bodner was not intended to transform the analysis into a probing review of the process through which the government developed its response, whether it took place within the executive, the legislature or both. As a result, I cannot agree with the Provincial Court Judges’ Association that references to the “totality” or “whole of the process” in Bodner, at para. 38, were meant to expand the scope of review such that the Cabinet decision‑making process must necessarily be scrutinized in every case.
[40] There is no doubt that the Provincial Judges Reference and Bodner require that the reviewing court focus on the government’s res