Democracy Watch v. Canada (Attorney General)

Democracy Watch v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2023-01-09
Neutral citation
2023 FC 31
File numbers
T-1324-20
Decision Content
Date: 20230109
Docket: T-1324-20
Citation: 2023 FC 31
Ottawa, Ontario, January 9, 2023
PRESENT: The Honourable Mr. Justice Southcott
BETWEEN:
DEMOCRACY WATCH AND DUFF CONACHER
Applicants
and
ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
I. Overview
[1] This decision relates to an application brought by the Applicants, Democracy Watch and Duff Conacher, under section 18.1 of the Federal Courts Act, RSC 1985, c F-7 [Act], challenging the constitutional validity of the Government of Canada’s federal judicial appointments system and judicial elevations system.
[2] The Applicants assert that these systems are unconstitutional, because they are subject to too much discretionary political control, influence and interference by the Minister of Justice and the Governor in Council. Specifically, the Applicants allege that these systems therefore undermine the structural independence and impartiality of the judiciary in ways that violate section 96 of the Constitution Act, 1867 [Constitution], sections 7, 11(d), and 24(1) of the Canadian Charter of Rights and Freedoms [Charter], and/or the constitutional principles of judicial independence and/or the rule of law.
[3] As explained in greater detail below, this application is dismissed because, applying the constitutional principles of judicial independence and impartiality as informed by the authorities and analysis set out in these Reasons, I find no constitutional violation.
II. Factual Background
[4] The Applicant, Duff Conacher, is a Ph.D. student at the University of Ottawa Faculty of Law. He has previously served as a part-time or visiting professor at the University of Toronto Faculty of Law and the University of Ottawa, including a cross appointment at the University of Ottawa Faculty of Law and School of Political Studies. Mr. Conacher is the Coordinator of the other Applicant, Democracy Watch, a not-for-profit organization that advocates for democratic reform, citizen participation in public affairs, and ethical behaviour in government and business in Canada.
[5] The Applicants challenge the constitutionality of the process leading up to federal judicial appointments to provincial/territorial superior and appellate courts, the Federal Court of Appeal, the Federal Court, and the Tax Court of Canada. They also challenge the process for elevation of judges to appellate courts (both provincial/territorial appellate courts and the Federal Court of Appeal). They do not challenge appointments to the Court Martial Appeal Court of Canada (presumably because its members are judges who have already been appointed to another court) or the Supreme Court of Canada (presumably because it is subject to a different appointment process).
[6] Later in these Reasons, I will address a motion by the Respondent, the Attorney General of Canada, seeking to strike portions of the Applicants’ affidavit evidence. As is apparent from that motion, the parties disagree on the record that should inform the Court’s analysis of their respective positions on the merits of this application. However, much of the factual background surrounding the federal judicial appointments and elevations processes is not controversial.
[7] The Respondent has filed in this application an affidavit of Philippe Lacasse, the Executive Director, Judicial Appointments and Senior Counsel in the Judicial Appointments Secretariat within the Office of the Commissioner for Federal Judicial Affairs Canada [FJA]. As described in Mr. Lacasse’s affidavit, FJA was created in 1978 to safeguard the independence of the judiciary and provide support for federally appointed judges. While the Commissioner acts as a deputy to the Minister of Justice for the purposes of carrying out Part I of the Judges Act, RSC 1985, c J-1, FJA is separate and independent from the Department of Justice. The following summary of the federal judicial appointments and elevations processes is derived largely from the explanation of those processes contained in Mr. Lacasse’s affidavit. I do not understand the following factual background to be contested by the Applicants.
[8] The federal judicial appointments system is the process by which judges are appointed to the courts identified above. The authority to appoint judges to the superior courts (for example, the Ontario Superior Court of Justice or the Alberta Court of King’s Bench) is assigned to the Governor General under section 96 of the Constitution. In addition to these superior courts, section 101 of the Constitution empowers the Parliament of Canada to create courts for the better administration of the laws of Canada. Acting on this authority, Parliament created the Federal Court, the Federal Court of Appeal, and the Tax Court of Canada. These courts are referred to as statutory courts. In accordance with the Act and the Tax Court of Canada Act, RSC 1985, c T-2, the Governor in Council [GIC] is responsible for appointing judges to these statutory courts.
[9] By constitutional convention, when appointing judges to provincial superior courts, the Governor General acts on the advice of the Committee of the Privy Council of Canada. Similarly, the GIC, which appoints judges to the Federal Court, the Federal Court of Appeal, and the Tax Court of Canada, is defined in the Interpretation Act, RSC 1985, c I-21, as the Governor General acting on the advice or consent of the Privy Council for Canada. The Privy Council is composed of all the ministers of the Crown, who meet in the body known as Cabinet (see League for Human Rights of B’Nai Brith Canada v Attorney General (Canada), 2010 FCA 307 [B’Nai Brith] at para 77). As such, all federal judicial appointments are made by the Governor General on the advice of Cabinet. In turn, Cabinet acts on the advice of the Minister of Justice [Minister]. (In the case of appointment of Chief Justices and Associate Chief Justices, it is the Prime Minister who provides the advice to Cabinet. For simplicity, these Reasons will refer to the advice to Cabinet being provided by the Minister.)
[10] Turning from constitutional and statutory provisions to current practice, the federal judicial appointments process involves the Minister receiving a list of recommendations from a Judicial Advisory Committee [JAC]. Across Canada, there are 17 JACs, which communicate to the Minister their recommendations for judicial appointments in their respective regions of responsibility. Each province and territory has at least one JAC, as does the Tax Court of Canada. The following explanation relates to the functioning of the JACs under the practice as in place since 2016.
[11] The provincial and territorial JACs each have seven members, comprised of:
One nominee from the provincial or territorial Law Society;
One nominee from the provincial or territorial branch of the Canadian Bar Association [CBA];
One judge nominated by the Chief Justice of the province or territory;
One nominee from the provincial Attorney General or the territorial Minister of Justice; and
Three nominees of the Government of Canada [the Government] representing the general public.
[12] The nominees of the Government representing the general public are selected by the Minister in their sole discretion following an application process that is open to anyone. While the applicable Law Society, CBA branch, and provincial Attorney General or territorial Minister of Justice is each responsible for putting forward a list of three nominees for the JAC, the individuals appointed to the JAC are ultimately selected by the Minister from those nominees. JAC members are appointed for a two-year term, with the possibility of one term renewal.
[13] The JAC that provides recommendations for appointments to the Tax Court of Canada is comprised of five members, consisting of one judge nominated by the Chief Justice of the Court and four Government nominees.
[14] FJA has responsibility for administering the 17 JACs, including providing orientation training to new JAC members, consulting the JAC chairs, attending JAC meetings, drafting committee reports to the Minister outlining JAC findings, and acting as the contact person to address any questions from prospective candidates or other individuals concerning the federal judicial appointments process. Applications for judicial appointment are submitted to the FJA, following which such applications are assessed by the applicable JAC.
[15] After the applicable JAC completes its review of the candidates and their applications, including potentially consulting with members of both the legal and non-legal community, it will prepare a report of its assessment of each candidate and indicate whether the candidate is “recommended” or “highly recommended” or whether the JAC is “unable to recommend” the candidate. This report is provided to the Minister.
[16] It is common ground between the parties that, before recommending that Cabinet make a particular judicial appointment, the Minister may consult with others. However, much of the disputed evidence in this application surrounds the nature of those consultations. I will therefore address those details later in these Reasons.
[17] Once a candidate is appointed to the bench, the JACs are not involved in any subsequent decision to elevate the judge to an appellate court (either a provincial/territorial Court of Appeal or the Federal Court of Appeal). As with initial judicial appointments, elevations are made by the Governor General on the advice of Cabinet, which acts on the advice of the Minister.
III. Procedural Background
[18] In support of their application, the Applicants have filed two affidavits sworn by Mr. Conacher, the first on December 17, 2020 [the First Conacher Affidavit] and the second on August 26, 2021 [the Second Conacher Affidavit]. These affidavits reference and append as exhibits a number of media articles that refer to statements by Government officials related to the judicial appointments process, as well as media articles and articles and public statements by lawyers, legal academics, and other sources. This evidence is intended to support the Applicants’ position that the extent of the discretionary political control, exerted by the Minister and Cabinet over the judicial appointments and elevations systems, violates the constitutional protection of judicial independence and impartiality at issue in this application.
[19] The Respondent takes the position that significant portions of the First Conacher Affidavit and the entirety of the Second Conacher Affidavit are inadmissible as impermissible hearsay and/or opinion evidence. In respect of the Second Conacher Affidavit, the Respondent also asserts delay on the Applicants’ part in seeking to adduce that evidence.
[20] The parties’ arguments on these issues were initially presented to Justice Aylen in her capacity as Case Management Judge. In respect of the First Conacher Affidavit, Justice Aylen concluded that the parties had not satisfied her that exceptional circumstances existed that would warrant an early determination of the issue. In respect of the Second Conacher Affidavit, Justice Aylen noted that its admissibility was inextricably linked to the admissibility of the Frist Conacher Affidavit. As such, she held that determination of the admissibility of both affidavits should be left to the judge hearing the application on its merits.
[21] Based on this reasoning, Justice Aylen issued an Order dated August 16, 2021 [the Aylen Order], dismissing the Respondent’s motion to strike the impugned portions of the First Conacher Affidavit and provisionally allowing the Applicants’ motion for leave to file the Second Conacher Affidavit. This relief was ordered without prejudice to the Respondent’s ability to challenge the admissibility of the two affidavits before the judge hearing the application.
[22] The parties presented arguments on the Respondent’s motion to strike in the course of the hearing of this application. As such, these Reasons will address that motion before turning to the merits of the application.
IV. Relief Sought
[23] In this application, the Applicants seek the following relief:
A. An order and/or declaration stating that the Government’s federal judicial appointments system and federal judicial elevations system fail to comply or accord with section 96 of the Constitution, sections 7, 11(d), and 24(1) of the Charter, and/or the principles of fundamental justice, including the unwritten constitutional principles of judicial independence and/or the rule of law; and
B. Directions with respect to changes to the federal judicial appointments system and federal judicial elevations system necessary to make them constitutionally compliant.
V. Issues
[24] Taking into account the parties’ respective arguments on the Respondent’s motion to strike and the main application, I would characterize the issues for the Court’s determination as follows:
Should portions of the First Conacher Affidavit and the entirety of the Second Conacher Affidavit be struck as impermissible hearsay?
Should portions of the First Conacher Affidavit be struck as impermissible opinion evidence?
Should the Second Conacher Affidavit be struck because of delay?
Should the Applicants be granted public interest standing to bring the application?
Do the federal judicial appointments system and federal judicial elevations system violate section 96 of the Constitution, sections 7, 11(d), and/or 24(1) of the Charter, and/or the unwritten constitutional principles of judicial independence and/or the rule of law?
If the federal judicial appointments system and federal judicial elevations system violate the Charter, whether the infringement can be saved by section 1 of the Charter?
To what remedy, if any, are the Applicants entitled?
VI. Analysis
A. Should portions of the First Conacher Affidavit and the entirety of the Second Conacher Affidavit be struck as impermissible hearsay?
[25] The Respondent takes the position that paragraphs 13 to 20, the first clause of the first sentence of paragraph 21, paragraphs 23 to 27, paragraphs 30 to 31, and Exhibits D to J, N to W, and Z to BB of the First Conacher Affidavit, and the entirety of the Second Conacher Affidavit, should be struck as impermissible hearsay.
[26] At the hearing of this application, the Applicants’ counsel acknowledged that they seek to rely on the challenged evidence for a hearsay purpose, i.e., to establish the truth of the contents of the statements made or referenced in the impugned paragraphs and exhibits. However, the Applicants argue that the evidence is admissible under the principled exception to the hearsay rule, which allows for the admission of hearsay evidence if it is reliable and necessary to the case (see, e.g., R v Smith, [1992] 2 SCR 915 [Smith] at pp 930-934; Telus Communications Inc v Telecommunications Workers Union, 2005 FCA 262 at paras 25-26; Cabral v Canada (Citizenship and Immigration), 2018 FCA 4 at para 30).
[27] As explained in Coldwater First Nation v Canada (Attorney General), 2019 FCA 292 at paragraphs 52-55 and 59, necessity must be given a flexible definition, which can potentially extend to expediency, such as promoting speed and efficiency by avoiding an impractically large number of affidavits. The Applicants argue that it is necessary that they introduce the evidence in the manner they have, because if every single source of the hearsay evidence were required to provide an affidavit speaking to their first-hand knowledge, the Court would be faced with an impractically large number of affidavits that would undermine the expeditious hearing of the application. The Applicants also argue that many of the media articles quote directly from Government documents, which are not available to the Applicants.
[28] The Respondent submits that none of the hearsay evidence is necessary, because the Court has the benefit of direct evidence from Mr. Lacasse, who has first-hand knowledge of the procedures and policies that apply to federal judicial appointments. I am not convinced that this argument engages with the meaning of necessity as prescribed by the jurisprudence. As explained in Smith¸ it would be illogical if uncorroborated hearsay evidence would be admissible, but could become inadmissible if corroborated by another source (at p 933). Rather, the question is whether the particular hearsay evidence that is impugned could not be otherwise made available as direct evidence (see Smith at p 934).
[29] However, I find more compelling the Respondent’s argument that there is no evidence before the Court to the effect that the Applicants made efforts to obtain direct evidence, for instance by approaching the relevant journalists, and were unable to do so. The Applicants’ argument on necessity rests principally on the assertion that it would have been unduly burdensome to attempt to assemble direct evidence. In Canada (Citizenship and Immigration) v Canadian Counsel for Refugees, 2021 FCA 72 [Canadian Counsel for Refugees], the Federal Court of Appeal expressed concern about relying on media reports to prove country conditions where other better types of evidence were readily available (at para 150). In the case at hand, the Applicants have not met their burden to establish that direct evidence is unavailable or would have been unduly difficult to obtain.
[30] Turning to reliability, the Applicants argue that much of the evidence comes from well-respected media outlets that hold themselves to the highest standards of journalistic integrity, in many cases quoting directly from material authored by individuals within the Government. They submit that both the particular journalists and their employers’ outlets have an interest in protecting their reputations, which provides a guarantee of reliability.
[31] The Respondent emphasizes that it is not challenging the integrity of any of the media outlets responsible for the articles upon which the Applicants seek to rely. Rather, admitting media reports to prove the truth of their contents raises the sorts of dangers identified in Canadian Counsel for Refugees surrounding inaccuracy, partiality, and lack of opportunity for it to be tested and assessed. I agree with those concerns. As expressed by the Federal Court of Appeal, constitutional cases with wide implications should not be decided based on what one finds in a newspaper (at para 150).
[32] One of the documents challenged by the Respondent is not a media article but rather a letter from the Canadian Judicial Council reporting on an investigation it had conducted. While the nature of that body assists with the reliability analysis, the Applicant has still offered no evidence to support a conclusion of necessity, particularly given that the complaint that was the subject of the investigation appears to have resulted from an article published in the Globe and Mail. Again, there is no evidence before the Court to the effect that the Applicants made efforts to obtain direct evidence, for instance by approaching the relevant journalist.
[33] In my view, this analysis results in exclusion of the articles attached as Exhibits D, E, F, G, H, I, J, N, O, S, T, U, V, Z, and BB to the First Conacher Affidavit and Exhibit A to the Second Conacher Affidavit because they are inadmissible hearsay. Paragraphs 14, 15, 16, 17, 18, 19, 20, 21 (first clause of first sentence), 23, 26, 30, and the last sentence of paragraph 31 of the First Conacher Affidavit and paragraph 2 of the Second Conacher Affidavit, which reference or rely on these excluded exhibits, are also inadmissible.
[34] The Respondent also seeks to strike as hearsay paragraph 13 of the First Conacher Affidavit, in which Mr. Conacher states that, after reviewing applications from people who apply to be judges, each jurisdiction’s JAC submits a long list of nominated candidates to the Minister. I agree with the Applicants’ position that paragraph 13 simply repeats the information set out in paragraph 10 of the affidavit, which the Respondent’s own written representations state is not contentious because it is based on a description from the FJA website. I will not strike this paragraph.
[35] Exhibit B to the Second Conacher Affidavit is also inadmissible, as the Applicants’ counsel confirmed at the hearing that the Applicants would not seek to rely on this exhibit, because it is illegible.
[36] Turning to the other exhibits to the Second Conacher Affidavit, in my view, three of these documents (Exhibits C, D and E) are admissible for a non-hearsay purpose - to demonstrate the fact that the communications reflected in those documents took place. Each of these documents is an email communication that the Applicants submit represents a request, or a response to a request, for input on one or more candidates for judicial appointments.
[37] As an example to illustrate this analysis, the email attached as Exhibit E is from the office of a Government minister stating that she does not know particular lawyers. The relevance of this document to the Applicants’ arguments in this application is not whether the content of the email is true (i.e. that the minister does not know the lawyers) but rather the fact that the email reflects the consultation with the minister having taken place.
[38] Exhibit F, however, does not fall into the same category, as it is a chart capturing the results of various alleged consultations and is therefore itself a hearsay statement by the unidentified author of the chart.
[39] To summarize the result of this aspect of the Respondent’s motion, in relation to the Second Conacher Affidavit, Exhibits A, B and F, and the paragraphs that reference them (2, 3a and 3e), are inadmissible.
[40] Returning to the First Conacher Affidavit, the above analysis has not yet addressed Exhibits P, Q, R, W and AA, which are not media reports but which the Respondent argues are also inadmissible hearsay. Exhibit P is a document entitled “Interim Report: The Canadian Federal Judicial Appointments Process and Opportunities for Reform”, dated August 2016, prepared by the International Commission of Jurists Canada [ICJ]. This report sets out findings drawn from responses to questionnaires prepared by ICJ in relation to the Canadian federal judicial appointments process. Exhibits Q, R and W are documents authored by lawyers, legal academics and the CBA, expressing views on judicial appointments processes. Exhibit AA is a document authored by a large number of bar associations and legal organizations in Canada advocating for the appointment of Black, Indigenous and People of Colour [BIPOC] judges.
[41] While there are undoubtedly hearsay elements to each of these documents, they are of a different nature than the media reports, and the Applicants seek to rely upon them for purposes that arguably extended beyond the truth of their contents. As such, their admissibility is best examined in the next section of these Reasons, which addresses the Respondent’s arguments that portions of the Applicants’ evidence represent inadmissible opinion.
B. Should portions of the First Conacher Affidavit be struck as impermissible opinion evidence?
[42] The Respondent takes the position that paragraphs 19 to 20, 24 to 27, the first two sentences of paragraph 28, paragraphs 29 to 31, and Exhibits H to J, P to W, and Y to BB of the First Conacher Affidavit should be struck as impermissible opinion evidence.
[43] These exhibits represent a subset of the media reports submitted by the Applicants, as well as Exhibits P, Q, R, W and AA, described immediately above in these Reasons. The Respondent that takes the position that each of these documents represents an effort by the Applicants to introduce studies or other forms of opinion evidence related to the judicial appointments process.
[44] The Applicants do not dispute this characterization of the evidence. Rather, they take the position that such evidence is admissible under the principles that permit the admission of lay opinion evidence in limited circumstances and/or as evidence that is directly relevant and necessary to what the Applicants describe as the central issue in this application. The Applicants argue that the test for judicial independence and impartiality is whether the public perceives that a court enjoys the essential objective conditions or guarantees for such independence and impartiality. They say that such perception cannot be analysed without the benefit of evidence as to public opinion on the conditions and guarantee of judicial independence.
[45] I accept the Applicants’ description of the test for judicial independence. As explained by the Supreme Court of Canada in R v Valente, [1985] 2 SCR 673 [Valente] at page 689, the test for judicial independence and impartiality is whether the court may be reasonably perceived as independent, with the perception to be assessed being a perception of whether the court enjoys the essential objective conditions or guarantees of judicial independence. I will return to the details of this assessment later in these Reasons.
[46] However, I agree with the Respondent’s position that this assessment is not intended to be performed by recourse to evidence of subjective public opinion. As expressed by the Supreme Court in Mackin v New Brunswick (Minister of Finance); Rice v New Brunswick, 2002 SCC 13 at para 38 (relying on Valente at p 689), the test for independence asks whether a reasonable person, who is fully informed of all the circumstances, would consider that a particular court enjoys the necessary independent status. As emphasized below, this test involves an objective analysis.
[47] As recognized in Canadian Pacific Ltd v Matsqui Indian Band, [1995] 1 SCR 3 [Matsqui], the analysis is akin to the classic test for a reasonable apprehension of bias, which asks whether the apprehension of bias is a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information (at para 81, relying on Committee for Justice and Liberty v National Energy Board, [1978] 1 SCR 369 at p 394). Expressed differently but to similar effect in R v RDS, [1997] 2 SCR 474, the reasonable apprehension of bias test contains a two-fold objective element: the person considering the alleged bias must be reasonable, and the apprehension of bias itself must be reasonable in the circumstances of the case. Further, the reasonable person must be an informed person, with knowledge of the relevant circumstances (para 111).
[48] These articulations of the required analysis all emphasize its objective nature. The reasonable perception of independence is not intended to be assessed through survey evidence or expressions of opinion, regardless of how voluminous or how arguably well-informed the individuals or bodies that express those opinions may be. Rather, applying the prescribed test requires an objective analytical exercise, to be conducted based on the relevant circumstances including in particular the conditions intended to achieve judicial independence.
[49] The analysis performed by the Supreme Court in Matsqui serves to illustrate the nature of the required assessment. Matsqui involved a challenge to the independence of appeal tribunals established under First Nations bands’ property tax bylaws. Applying the principles derived from Valente, the Court explained its conclusion that a reasonable and right-minded person, viewing the whole procedure in the assessment bylaws, would have a reasonable apprehension that members of the appeal tribunals were not sufficiently independent (at para 98). In other words, the Court performed an objective analysis based on the conditions existing under the applicable bylaws.
[50] I therefore agree with the Respondent’s position that the opinion evidence the Applicants seek to adduce is irrelevant to the issue in this application. With respect to those components of that evidence that seek to introduce the results of surveys or other studies, I agree with the Respondent that this evidence is also inadmissible based on the principles explained in Mattel, Inc v 3894207 Canada Inc, 2006 SCC 22 at paragraph 43. Even where relevant to an analysis the Court is required to perform, evidence of a survey of public opinion must be presented as expert evidence. Finally, to the extent that opinion evidence represents an opinion on the specific legal issue to be decided by the Court, it is also admissible on that basis (see Boily v Canada, 2017 FC 1021 at para 32; Canada (Board of Internal Economy) v Canada (Attorney General), 2017 FCA 43 at para 18). This last point applies in particular to Exhibit Q, the opinion piece authored by three lawyers entitled “Why we need a constitutional challenge on judicial appointments”.
[51] Applying these principles, I find the exhibits and related paragraphs of the First Conacher Affidavit, challenged by the Respondent as opinion evidence, to be inadmissible as evidence in this application. In addition to exhibits and paragraphs found inadmissible through the hearsay analysis earlier in these Reasons, this conclusion applies to Exhibits P, Q, R, W, Y and AA of the First Conacher Affidavit and paragraphs 24, 25, 27, 29 and the last sentence of paragraph 31 therein that reference and rely on these exhibits. The first two sentences of paragraph 28 of the affidavit represent Mr. Conacher’s own opinion and are also inadmissible.
[52] In arriving at this conclusion, I have considered the Applicants’ argument that, in its analysis in the seminal case of Valente, the Supreme Court cited opinion evidence of the sort upon which the Applicants seek to rely. The Applicants refer to paragraphs of Valente that reference what appear to be legal academic books and articles, publications and declarations of international bodies, and a then recent report of a CBA committee on judicial independence (see Valente at pp 686-687, 691-692, 696-698, 700, 701, and 708-711).
[53] I agree with the Respondent’s submission that the Supreme Court’s references to this material does not represent reliance on opinion evidence relevant to findings of fact, but rather recourse to this material to inform its legal analysis and in particular its conclusions as to the content of the principle of judicial independence. In that respect, it is of course acceptable and not uncommon for a court to rely not only upon judicial authorities but also upon academic commentary to inform its analysis of the law including advancements therein.
[54] Viewed through that lens, I consider a limited number of the documents that will be excluded from evidence as inadmissible opinion to be appropriate for the Applicants to rely upon to support their submissions on what the law requires to secure judicial independence. In my view, the documents that are amenable to consideration in this manner are the following:
Article by Joanna Harrington, a professor of law at the University of Alberta, entitled “From the U.K., a lesson on judicial appointments” (originally attached as Exhibit R to the First Conacher Affidavit) [Harrington Article];
Statement from the CBA President on judicial appointments, dated November 6, 2020 (originally attached as Exhibit W to the First Conacher Affidavit) [CBA Statement]; and
Letter dated September 14, 2020 to Hon. David Lametti, described as on behalf of 36 bar associations and legal organizations from across Canada, with the subject line “Appointment of BIPOC judges to Canada’s federal courts” (originally attached as Exhibit AA to the First Conacher Affidavit) [BIPOC Letter].
[55] To be clear, while the previous paragraph identifies these documents by reference to exhibits to the First Conacher Affidavit, so as to situate them in the record, it remains my conclusion is that they are inadmissible as evidence. However, the Applicants are entitled to rely upon them in support of their legal submissions.
C. Should the Second Conacher Affidavit be struck because of delay?
[56] The Respondent notes the Aylen Order observes that, in order for a party to obtain leave to file additional evidence, it must first establish that the evidence is admissible and relevant. Given Justice Aylen’s determination that the admissibility of the Second Conacher Affidavit was linked to the admissibility of the First Conacher Affidavit, she provisionally allowed the evidence, without prejudice to the Respondent’s right to raise objections to its admissibility at the hearing of the application.
[57] Against that backdrop, the Respondent argues that, even if the Applicants establish that any portion of the Second Conacher Affidavit is otherwise admissible, they still bear the onus of establishing that the Court should exercise its discretion to admit that evidence, having regard to the Applicants’ delay in filing it. They refer to the applicable test: (a) whether the evidence sought to be adduced was available when the party filed its affidavits or could have been available with the exercise of due diligence; (b) whether the evidence is sufficiently probative that it could affect the result; and (c) whether the evidence will cause substantial prejudice to the other party (see Forest Ethics Advocacy Association v National Energy Board, 2014 FCA 88 [Forest Ethics] at para 6).
[58] These three factors are not mandatory elements of a conjunctive test, such that each must be satisfied. Rather, they are factors that must be considered and balanced in the exercise of the Court’s discretion under Rule 312 (see Smart Cloud Inc v International Business Machines Corporation, 2021 FC 236 at para 39). The Respondent submits that the Applicants fail on the first two of these factors.
[59] In relation to the availability of the evidence, the Respondent notes that the media article attached as Exhibit A to the Second Conacher Affidavit was published on October 31, 2020. The Respondent further submits that, in his affidavit in the original motion for leave to adduce this evidence, Mr. Conacher stated that the article first came to his attention in December 2020 before the First Conacher Affidavit was sworn on December 17, 2020. However, he chose not to include this evidence. In addition, the Applicants do not set out any efforts they made to obtain the article or supporting information prior to December 17, 2020. Nor have the Applicants provided an explanation why the Second Conacher Affidavit was not sworn until August 2021, long after the Respondent’s evidence was provided in February 2021.
[60] The Respondent also argues that the evidence is not sufficiently probative that it could affect the result, as there is no dispute that the Minister is permitted to consult on candidates following receipt of recommendations from a JAC. The Respondent submits that, at its highest, the Second Conacher Affidavit provides examples where the Minister may have engaged in such consultations.
[61] Under the first of the Forest Ethics factors, the Applicant responds that, while the media article attached as Exhibit A to the Second Conacher Affidavit could have been included in the First Conacher Affidavit, Mr. Conacher chose not to do so because he did not have confirmation of the information in the article until late January 2021, when he received from the journalist copies of the emails that are attached as the other exhibits to the affidavit.
[62] Regardless of the merit of this argument surrounding Exhibit A, it is clear that the emails were not available to Mr. Conacher when he filed the First Conacher Affidavit. It is only certain of those emails (Exhibits C, D, and E) that remain at issue, as I have found the others to be inadmissible hearsay. I accept the Respondent’s argument that that the Applicants have not explained the delay between the January 2021, when the emails were provided to Mr. Conacher, and August 2021, when the Second Conacher Affidavit was sworn. However, in my view, this further delay goes to prejudice, and the Respondent has not asserted any prejudice arising from the delay in filing the Second Conacher Affidavit, either from the time when the First Conacher Affidavit was filed or thereafter. As such, I find that the first and third Forest Ethics factors favour the Applicants.
[63] With respect to the second factor, I find that the evidence at issue will assist the Court, because it is relevant to the Applicants’ position that the nature of the consultations conducted by the Minister, before recommending that Cabinet make a particular judicial appointment, undermines judicial independence. I understand the Respondent’s argument questioning the probative value of this evidence, as the Respondent acknowledges that the process involves ministerial consultation. However, as the emails attached as the Exhibits C, D, and E represent examples of the particular sort of consultation that the Applicants argue to be problematic, admitting that evidence will assist the Court in considering the substantive issue raised in this application.
[64] In conclusion on this point, I find that the Second Conacher Affidavit should not be struck because of delay.
D. Should the Applicants be granted public interest standing to bring the application?
[65] Because neither of the Applicants asserts a personal interest in the judicial appointments or elevations process that they wish to challenge, they seek public interest standing to bring the present application. As explained in Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45 [Downtown Eastside] at paragraphs 35 to 37, granting public interest standing involves an exercise of discretion that considers three factors: (a) whether there is a serious justiciable issue raised; (b) whether the party seeking standing has a real stake or a genuine interest in that issue; and (c) whether, in all the circumstances, the proposed proceeding is a reasonable and effective way to bring the issue before the courts. These factors are intended to be applied purposively and flexibly.
(1) Real Stake or Genuine Interest
[66] As the Respondent does not advance arguments under the second of these factors, I will address it only briefly. Considering whether an applicant has a genuine interest or real stake in a proceeding is determined by weighing whether the applicant is genuinely engaged with the issue raised as opposed to being a “mere busybody.” In performing this assessment, a court will take into account the applicant’s mandate and experience (see Downtown Eastside at paras 43, 58).
[67] The Applicant, Democracy Watch, submits that it fulfils this requirement, as it is an independent organization whose purpose is focused on government accountability, including transparent and accountable enforcement of Canada’s ethics rules. It actively participates in public policymaking and legislative processes in matters relating to government ethics rules and other areas of democratic reform and government accountability. Democracy Watch also regularly participates in judicial proceedings engaging these topics. While not binding on my decision whether to grant it public interest standing in the present application, I note that Democracy Watch has been granted public interest standing in previous applications, including judicial reviews before the Federal Court concerning the appointment process for the federal Conflict of Interest and Ethics Commissioner and the federal Commissioner of Lobbying in which, as in the present application, it was not the directly affected party (Democracy Watch v Canada (Attorney General), 2018 FC 1290; Democracy Watch v Canada (Attorney General), 2018 FC 1291).
[68] The individual Applicant, Mr. Conacher, is a professor and scho