Canadian Constitution Foundation v. Canada (Attorney General)

Canadian Constitution Foundation v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2022-08-26
Neutral citation
2022 FC 1233
File numbers
T-347-22
Notes
Digest
Decision Content
Date: 20220826
Docket: T-347-22
Citation: 2022 FC 1233
Ottawa, Ontario, August 26, 2022
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
CANADIAN CONSTITUTION FOUNDATION
Applicant/
Moving Party
and
THE ATTORNEY GENERAL OF CANADA
Respondent/
Responding Party
and
ATTORNEY GENERAL OF ALBERTA
Intervenor/
On Application Only
ORDER AND REASONS
I. Introduction
[1] This is a motion by the Applicant, the Canadian Constitution Foundation (the “Applicant” or the “CCF”), arising from its application for judicial review in relation to the Proclamation Declaring a Public Order Emergency, SOR/2022-20 [Emergency Proclamation], issued on February 14, 2022 pursuant to s. 17(1) of the Emergencies Act, RSC 1985, c 22 (4th Supp) (the “Act”). The Emergency Proclamation declared “that a public order emergency exists throughout Canada and necessitates the taking of special temporary measures for dealing with the emergency.”
[2] The underlying application for judicial review challenges the lawfulness of the Emergency Proclamation and related measures. In their Notice of Application, the Applicant requested the production of records related to the Emergency Proclamation under Rule 317 of the Federal Courts Rules, SOR/98-106 (the “Rule 317 Request”).
[3] Some records were initially produced in response to the Rule 317 Request. The Respondent has recently disclosed redacted versions of Cabinet records of discussions that led to the decision to issue the Emergency Proclamation. Portions of the records are redacted under section 39 of the Canada Evidence Act, RSC 1985, c C-5 [CEA] and other claims of privilege.
[4] On this motion, the Applicant seeks a declaration that the response to its Rule 317 Request is incomplete and serves to immunize the decision from judicial review. It seeks an order directing the Respondent to deliver the items for which Cabinet Confidence has been claimed in an unredacted form and on a counsel-only basis, subject to undertakings of confidentiality.
[5] With the recent delivery of records by the Respondent, the Court is unable to conclude that the assertion of privilege under section 39 has the effect of immunizing the decision to issue the Emergency Proclamation from judicial review. For that reason, the motion is dismissed. However, the assertion of additional heads of privilege over other portions of the Cabinet records will require further examination by the Court to determine whether those claims are valid.
II. Background
A. Protests and Government Response
[6] On January 28, 2022, convoys of trucks and other vehicles from across Canada, entitled the “Freedom Convoy”, arrived in Ottawa as part of a protest movement against the federal government’s public health response to the COVID-19 pandemic. The protest movement spread to different parts of the country, including to ports of entry such as Ambassador Bridge in Windsor, Ontario and the border crossing in Coutts, Alberta.
[7] On February 10, 2022, Prime Minister Trudeau convened the Incident Response Group (“IRG”) in order to address the ongoing blockades across the country. According to an announcement of changes to the structure and mandate of Cabinet committees on August 28, 2018, the IRG is a “dedicated emergency committee that will convene in the event of a national crisis or during incidents elsewhere that have major implications for Canada … the Group will bring together relevant ministers and senior government leadership to coordinate a prompt federal response and make fast, effective decisions to keep Canadians safe and secure, at home and abroad.”
[8] In addition to its meeting of February 10, 2022, the IRG subsequently met on February 12 and 13, 2022. Cabinet also met on February 13, 2022. Over the course of its three meetings, the IRG had what was described as a “robust discussion” of whether to issue a public order emergency: “February 14, 2022 Declaration of Public Order Emergency Explanation pursuant to subsection 58(1) of the Emergencies Act” at p. 4 [Section 58 Explanation].
[9] The Emergency Proclamation specified that the public order emergency constituted of:
(i) the continuing blockades by both persons and motor vehicles that is occurring at various locations throughout Canada and the continuing threats to oppose measures to remove the blockades, including by force, which blockades are being carried on in conjunction with activities that are directed toward or in support of the threat or use of acts of serious violence against persons or property, including critical infrastructure, for the purpose of achieving a political or ideological objective within Canada,
(ii) the adverse effects on the Canadian economy — recovering from the impact of the pandemic known as the coronavirus disease 2019 (COVID-19) — and threats to its economic security resulting from the impacts of blockades of critical infrastructure, including trade corridors and international border crossings,
(iii) the adverse effects resulting from the impacts of the blockades on Canada’s relationship with its trading partners, including the United States, that are detrimental to the interests of Canada,
(iv) the breakdown in the distribution chain and availability of essential goods, services and resources caused by the existing blockades and the risk that this breakdown will continue as blockades continue and increase in number, and
(v) the potential for an increase in the level of unrest and violence that would further threaten the safety and security of Canadians;
[10] The Emergency Proclamation was followed by the issuance of the Emergency Measures Regulations, P.C 2022-107, SOR/2022-21 and Emergency Economic Measures Order, P.C. 2022-108, SOR/2022-22 [collectively, the “Emergency Regulations”] on February 15, 2022. The three instruments collectively form the decision that is subject to judicial review in the underlying application.
[11] On February 16, 2022, the Section 58 Explanation report was tabled in the House of Commons, together with a motion for confirmation of the Emergency Proclamation. The House of Commons confirmed the motion on February 21. Debate on the motion was also commenced in the Senate; however, the Emergency Proclamation was revoked pursuant to s. 22 of the Act on February 23, 2022. As a direct consequence of the revocation, the Emergency Regulations expired on February 23, 2022, in accordance with s. 26(2) of the Act. The revocation of the Emergency Proclamation took place before the Senate could vote on whether to confirm the motion.
B. Applications for Judicial Review
[12] The CCF is a registered charity that brings its underlying judicial review application on the basis of a claimed public interest standing. The organization’s stated mission is to protect constitutional freedoms through education, communication, and litigation. The CCF filed a Notice of Application for Judicial Review on February 22, 2022 seeking, with other relief, declarations that the Emergency Proclamation and Emergency Regulations were unlawful.
[13] Similar applications for judicial review are pending before the Court in files T-316-22, Canadian Civil Liberties Association v Attorney General of Canada (“CCLA”), T- 306-22, Canadian Frontline Nurses et al. v Attorney General of Canada (“CFN”) and T-382-22, Jost et al. v Attorney General of Canada (“Jost et al.”.)
(1) The Rule 317 Request and response
[14] In their Notice of Application, the CCF requested, pursuant to Rule 317, certified copies of the following materials in the possession of the Respondent:
1. The record of materials before the Governor in Council (“GIC”) in respect of the Emergency Proclamation.
2. The record of materials before the GIC in respect of the Emergency Measures Regulations.
3. The record of materials before the GIC in respect of the Emergency Economic Measures Order.
[15] On March 15, 2022, the Assistant Clerk of the Privy Council delivered a Record to the Federal Court consisting of:
-Order in Council: Order directing that a Proclamation be issued, P.C. 2022-0106
-Proclamation Declaring a Public Order Emergency, SOR /2022-20
-Order in Council: Emergency Measures Regulations, P.C. 2022 -0107
-Annexed Emergency Measures Regulations, SOR /2022-21
-Order in Council: Emergency Economic Measures Order, P.C. 202-0108; and
-Annexed Emergency Economic Measures Order, SOR/2022-22.
[16] Other material before the GIC was withheld on the grounds of Cabinet confidentiality, as the Assistant Clerk’s letter asserted that such material was a confidence of the Queen’s Privy Council for Canada. This included:
-Three submissions dated February 2022 to the GIC from the Minister of Public Safety and Emergency Preparedness, one of each of the Emergency Proclamation, the Emergency Measures Regulations and the Emergency Economic Measures Order “including the signed Ministerial recommendation, a draft Order in Council regarding a proposed proclamation, a draft proclamation, and accompanying materials.”
-The record recording the decision of the GIC concerning the Emergency Proclamation and the two Emergency Regulations.
(2) First Section 39 Certificate
[17] On March 31, 2022, the Interim Clerk of the Privy Council signed a Certificate claiming confidence of the Queen’s Privy Council of Canada in relation to the following materials set out in a Schedule to the Certificate:
1) Submission to the GIC from the Minister of Public Safety and Emergency Preparedness, dated February 2022, regarding the proposed Order in Council directing that a proclamation be issued pursuant to subsection 17(1) of the Emergencies Act, including the signed Ministerial recommendation, a draft Order in Council regarding a proposed proclamation, a draft proclamation, and accompanying materials;
2) The record recording the decision of the GIC concerning the Emergency Proclamation, dated February 2022, signed by Council;
3) Submission to the GIC from the Minister of Public Safety and Emergency Preparedness, dated February 2022, regarding the proposed Order in Council pursuant to subsection l9(l) of the Emergencies Act and concerning emergency measures regulations, including the signed Ministerial recommendation, a draft Order in Council regarding proposed emergency measures regulations, draft regulations, and accompanying materials;
4) The record recording the decision of the GIC concerning emergency measures regulations, dated February 2022;
5) Submission to the GIC from the Minister of Public Safety and Emergency Preparedness, dated February 2022, regarding the proposed Order in Council pursuant to subsection 19(1) of the Emergencies Act and concerning an emergency economic measures order, including the signed Ministerial recommendation, a draft Order in Council regarding a proposed emergency economic measures order, a draft order, and accompanying materials.
6) The record recording the decision of the GIC concerning an emergency economic measures order, dated February 2022.
[18] The Interim Clerk determined that the three requested Submissions constituted memoranda the purpose of which was to present proposals or recommendations to the GIC, and therefore came within paragraph 39(2)(a) of the CEA.
[19] As for the three requested records, the Interim Clerk determined that they constitute agendas of Council or records recording deliberations or decisions of Council, and thus, come within paragraph 39(2)(c) of the CEA.
[20] The Interim Clerk further certified that paragraphs 39(4)(a) – the twenty-year limitation period – and 39(4)(b) – the discussion paper exception - did not apply in respect of the information.
[21] In a letter dated April 4, 2022, the Respondent expressed their position to the CCF, CCLA, CFN and Jost et al. applicants that the Section 39 Certificate bars any disclosure of the requested information. On April 12, 2022, the Respondent filed a Motion to Strike the four applications on the grounds that the applicants lack standing and that their applications for judicial review were moot. On consent, the Respondent’s motion to strike will be heard when the merits of the four applications are set down for argument.
(3) Applicant’s motion
[22] In this Motion, as filed, the Applicant sought a declaration that the Respondent had delivered an incomplete record in response to the Rule 317 Request by failing to include the following items:
The Minutes of the meetings of the Incident Response Group on February 10, 12, 13, 2022;
The Minutes of the meeting of the Governor in Council (“Federal Cabinet”) on February 13, 2022; and
Electronic records such as, without limitation, emails, texts and other electronic correspondence “reflecting communications or discussions between ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy” (section 39(2)(d) of the Canada Evidence Act).
[23] The Applicant’s Written Representations in support of the Motion do not contain any allegations of fact or arguments pertaining to electronic records as described in “c” above, and do not list this request as one of the declarations sought, nor was this raised at the hearing.
[24] The Applicant also sought an Order directing the Respondent to deliver the three sets of items described above pursuant to Rule 318(1) of the Federal Court Rules, and Orders to deliver the items listed in the Schedule to the First Section 39 Certificate pursuant to Rules 151 and 152 and/or the plenary powers of the Federal Court under the Common Law, its status as a “court” under s. 101 of the Constitution Act, 1867 and/or the unwritten constitutional principle of the Rule of Law.
[25] In a related motion filed on April 1, 2022, the Applicant sought to amend its Notice of Application in order to obtain records in relation to the decision dated February 23, 2022 in which the GIC, on the recommendation of the Cabinet, issued the Proclamation Revoking the Declaration of a Public Order Emergency, SOR/2022-26 [Revocation Proclamation] which revoked the Emergency Proclamation. Following s. 15(2) of the Act, all orders and regulations made pursuant to the prior declaration were thus revoked.
[26] This Motion and the Motion to Amend the Applicant’s Notice of Application were set down for hearing on August 8, 2022, following several postponements due to ongoing procedural steps in the underlying file and the related files, as well as an indication from the Respondent that a further CEA s. 39 certificate would be forthcoming. The motions brought by the CCF were scheduled to be heard together with a Motion brought by the CCLA which also pertained to the application of CEA s. 39 to the record produced by the Respondent in relation to the Emergency Proclamation.
(4) Delivery of the redacted records
[27] On July 19, 2022, the Respondent delivered redacted minutes of the meetings of the IRG on February 10, 12, and 13, 2022 and of Cabinet on February 13, 2022 to the parties in the four applications. The Chair’s annotated and redacted agendas for the IRG meetings were delivered to the parties on July 22, 2022. The documents bear notations that the redactions were made pursuant to privilege claims under CEA sections 37, 38 and 39, for claims of solicitor-client privilege and for lack of relevance. The redacted documents were also delivered to the Court and deposited in the public files for each of the applications for judicial review.
[28] In correspondence to the Court on July 22, 2022, the Applicant acknowledged that its motion for a declaration that the Respondent had delivered an incomplete Certified Tribunal Record by omitting the IRG and Cabinet Minutes of February 10, 12 and 13, 2022 was moot following the filing of the materials with the Court Registry.
[29] In light of the redactions to the delivered records, the Applicant sought leave to amend its motion to seek the following remedies:
An order directing the AGC to deliver unredacted versions of the following materials to the Court Registry under seal forthwith: (a) the items listed in the Schedule to the Section 39 Certificate; (b) the minutes of the IRG meetings held on February 10, 12 and 13, 2022; (c) the minutes of the Cabinet meeting held on February 13, 2022; (d) the Chair’s Annotated Agendas for the three IRG meetings held on February 10, 12 and 13, 2022; (e) the Revocation Proclamation CTR (if the Applicant’s motion to amend is granted); and (f) the documents listed in the Schedule to the Second Section 39 Certificate (if issued).
The appointment of an amicus curiae with full access to these materials, to make in camera, ex parte submissions on the merits of the Application.
(5) The Second Section 39 Certificate
[30] On August 4, 2022, the Clerk of the Privy Council signed a second certificate to which was attached a schedule referencing the portions of the documents delivered to the parties and the Court for which Cabinet Confidence and other privileges were claimed. These were the Minutes for the meetings of the IRG and Cabinet on February 10, 12 and 13 and the Annotated Agendas for the IRG meetings of those dates.
[31] The August 4 Section 39 Certificate states that the Clerk had examined the information described in the attached schedule for the purpose of determining whether it constitutes a confidence of the Queen’s Privy Council for Canada and whether it should be protected from disclosure under s. 39 of the CEA. The schedule consists of a table which identifies the date and type of document, from whom and to whom it was directed, the determination by the Clerk and a description of the information in each document for which s. 39 privilege is claimed. The column under the heading “Determination” states which portions of the documents are within paragraph 39(2)(d) or (e), or both. One entry cites paragraph 39(2)(c). The column describing the information tracks the language of the relevant paragraph of s. 39.
[32] Upon receipt of the Second Section 39 Certificate, the CCLA elected not to proceed with its Motion but requested an opportunity to make submissions during the hearing of the CCF Motion respecting the CEA s. 39 Certificates. The Court granted that request. The CCLA made no submissions with respect to the CCF’s Motion to Amend. The CFN and Jost et al. applicants and the Attorney General of Alberta, granted intervenor status only with respect to the hearing of the applications, took no part in the hearing of the CCF motions.
III. Issues
[33] The CCF seeks an Order from the Court for the delivery of unredacted copies of any item listed in the Section 39 Certificates on a counsel-only basis and subject to a confidentiality undertaking. It argues that this is the only means by which meaningful judicial review of the decision to issue the Emergency Proclamation can be undertaken through the adversarial process.
[34] In the limited oral argument for which leave was granted, the CCLA supported the CCF motion to the extent that it urged the Court to develop a flexible approach to ensure effective judicial review of decisions made under the Act.
[35] Given the change in the Respondent’s position with respect to the materials it was prepared to produce in response to the Rule 317 Request, much of what the CCF sought to achieve with this motion became moot. However, the CCF contends that the annotated agendas and minutes of the IRG meetings and the Cabinet meeting minutes continue to be an inadequate response to its Rule 317 Request due to the extensive redactions of the text of the documents.
[36] It is apparent on the face of the delivered agendas and minutes that there are a significant number of redactions under heads of privilege other than those for which Cabinet Confidence is asserted. In describing each of the records, the Schedule forming part of the Certificate indicates that “[c]ertain portions are within s. 39(2)(c)” or paragraphs (d) and (e) as the case may be. The redactions on each record contain similar notations as well as references to other privilege claims.
[37] The determinative question on this motion is whether the record before the Court is complete. Corollary to that is whether the record as a whole including the delivery of the redacted Cabinet materials has immunized the decision from judicial review.
IV. Legal Framework
[38] The legislative provisions relevant to this motion are Rules 317 and 318 of the Federal Courts Rules and sections 37 to 37.3, 38 to 38.15 and 39 of the CEA. Only the text of s. 39 will be reproduced here in full. The other provisions can be summarized.
[39] Rule 317 of the Federal Courts Rules allows a party to request relevant material in the possession of a tribunal by filing a written request either in a Notice of Application for Judicial Review or separately. “Tribunal” has the same meaning as “federal board, commission or other tribunal” in the Federal Courts Act, RSC 1985, c F-7. For the purposes of this proceeding, there is no dispute that it applies to the Federal Cabinet and Privy Council Office. The relevance of the material in question in these proceedings has not been contested. The IRG and Cabinet minutes are relevant and thus producible pursuant to Rule 317, as they provide an account of the collective reasoning process engaged in by members of these two bodies in reaching the decision under review.
[40] Rule 318 sets out a process for dealing with objections to requests under Rule 317. Where a tribunal or party objects to a Rule 317 request, it must inform all parties and the Court of the reasons for the objection. The Court may give directions to the procedure for making submissions with respect to the objection and, after hearing submissions with respect to an objection, the Court may order that a certified copy or the original of all or part of the material requested be forwarded to the Registry.
[41] Sections 37 to 37.3 of the CEA provide a scheme for the making and determination of objections to the disclosure of information on the grounds of a specified public interest. The effect of an objection is to preclude disclosure of the information unless and until permitted by the reviewing court, which may be a provincial Superior Court or the Federal Court.
[42] Objections to the disclosure of information that may be injurious to international relations, national defence and national security are dealt with under sections 38 to 38.15 of the CEA. These enactments constitute a comprehensive and self-contained scheme distinct from the s. 37 procedure. In brief, the scheme requires that notice be given to the Attorney General of Canada that information that may be injurious to the three protected national interests may be disclosed in a proceeding, a determination by the Attorney General as to disclosure and, if not disclosed, an application to the Federal Court to determine whether the information may be disclosed and, if so, in what form.
[43] Section 39 of the CEA allows a Minister of the Crown or the Clerk of the Privy Council to object to the disclosure of confidences of the Queen’s Privy Council before a court. This requires the Clerk or Minister to consider two questions: first, whether the information is a Cabinet Confidence within the meaning of the section; and second, whether it is information which the government should protect taking into account the competing interests in disclosure and retaining confidentiality: Babcock v Canada (Attorney General), 2002 SCC 57 at para 22 [Babcock]. The full text of the enactment is as follows:
Confidences of the Queen’s Privy Council for Canada
Objection relating to a confidence of the Queen’s Privy Council
39 (1) Where a minister of the Crown or the Clerk of the Privy Council objects to the disclosure of information before a court, person or body with jurisdiction to compel the production of information by certifying in writing that the information constitutes a confidence of the Queen’s Privy Council for Canada, disclosure of the information shall be refused without examination or hearing of the information by the court, person or body.
Definition
(2) For the purpose of subsection (1), a confidence of the Queen’s Privy Council for Canada includes, without restricting the generality thereof, information contained in
(a) a memorandum the purpose of which is to present proposals or recommendations to Council;
(b) a discussion paper the purpose of which is to present background explanations, analyses of problems or policy options to Council for consideration by Council in making decisions;
(c) an agendum of Council or a record recording deliberations or decisions of Council;
(d) a record used for or reflecting communications or discussions between ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy;
(e) a record the purpose of which is to brief Ministers of the Crown in relation to matters that are brought before, or are proposed to be brought before, Council or that are the subject of communications or discussions referred to in paragraph (d); and
(f) draft legislation.
Definition of Council
(3) For the purposes of subsection (2), Council means the Queen’s Privy Council for Canada, committees of the Queen’s Privy Council for Canada, Cabinet and committees of Cabinet.
Exception
(4) Subsection (1) does not apply in respect of
(a) a confidence of the Queen’s Privy Council for Canada that has been in existence for more than twenty years; or
(b) a discussion paper described in paragraph (2)(b)
(i) if the decisions to which the discussion paper relates have been made public, or
(ii) where the decisions have not been made public, if four years have passed since the decisions were made.
Renseignements confidentiels du Conseil privé de la Reine pour le Canada
Opposition relative à un renseignement confidentiel du Conseil privé de la Reine pour le Canada
39 (1) Le tribunal, l’organisme ou la personne qui ont le pouvoir de contraindre à la production de renseignements sont, dans les cas où un ministre ou le greffier du Conseil privé s’opposent à la divulgation d’un renseignement, tenus d’en refuser la divulgation, sans l’examiner ni tenir d’audition à son sujet, si le ministre ou le greffier attestent par écrit que le renseignement constitue un renseignement confidentiel du Conseil privé de la Reine pour le Canada.
Définition
(2) Pour l’application du paragraphe (1), un renseignement confidentiel du Conseil privé de la Reine pour le Canada s’entend notamment d’un renseignement contenu dans :
a) une note destinée à soumettre des propositions ou recommandations au Conseil;
b) un document de travail destiné à présenter des problèmes, des analyses ou des options politiques à l’examen du Conseil;
c) un ordre du jour du Conseil ou un procès-verbal de ses délibérations ou décisions;
d) un document employé en vue ou faisant état de communications ou de discussions entre ministres sur des questions liées à la prise des décisions du gouvernement ou à la formulation de sa politique;
e) un document d’information à l’usage des ministres sur des questions portées ou qu’il est prévu de porter devant le Conseil, ou sur des questions qui font l’objet des communications ou discussions visées à l’alinéa d);
f) un avant-projet de loi ou projet de règlement.
Définition de Conseil
(3) Pour l’application du paragraphe (2), Conseil s’entend du Conseil privé de la Reine pour le Canada, du Cabinet et de leurs comités respectifs.
Exception
(4) Le paragraphe (1) ne s’applique pas :
a) à un renseignement confidentiel du Conseil privé de la Reine pour le Canada dont l’existence remonte à plus de vingt ans;
b) à un document de travail visé à l’alinéa (2)b), dans les cas où les décisions auxquelles il se rapporte ont été rendues publiques ou, à défaut de publicité, ont été rendues quatre ans auparavant.
V. Analysis
[44] As indicated above, this motion has changed since it was filed several months ago. At the outset, the CCF sought the Court’s intervention because the Respondent initially took the position that only what was formally before the Governor in Council with respect to the grounds for invoking the Emergencies Act could be disclosed. This did not include the composition of the IRG, any of the information submitted to that committee or to Cabinet leading to the decision to invoke the Act or any record of their deliberations.
[45] The Respondent contended that the record subject to production under Rule 317 consisted solely of the materials delivered to the Court and the parties on March 15, 2022 by the Assistant Clerk of the Privy Council. Other information that was before the IRG and Cabinet, the Respondent asserted, was not part of the record before the GIC as decision maker and was protected as a confidence of the Queen’s Privy Council for Canada under s. 39.
[46] The context in which the Court must now consider the motion has been substantially altered by the delivery of the IRG and Cabinet Minutes, the IRG’s Annotated Agendas and the issuance of the Second Section 39 Certificate. These developments rendered moot much of what the CCF sought to achieve through the motion, as it acknowledged in its correspondence to the Court on July 22, 2022. The parties now have considerably more information about the record leading to the declaration then they had prior to the delivery of these materials.
[47] The Applicant maintains, however, that the delivered record continues to be unresponsive to its Rule 317 Request due to the redactions in the IRG and Cabinet material. The CCF submits that effective and meaningful judicial review of the decision to invoke the Act can only be achieved through the adversarial process and that this requires unredacted copies of the record to be delivered to the parties on a counsel-only basis with undertakings of confidentiality on their part.
[48] The Respondent argues that, in its entirety, the record is sufficient for meaningful judicial review and that there is no provision in law for the remedy that the Applicant seeks. The CCLA, not a party to the motion but granted leave to make brief oral submissions, argues that as this is the first time that the Act has been invoked since it was enacted in 1981, the Court should craft an innovative and flexible means to conduct judicial review of such decisions going forward.
[49] Having considered the arguments of counsel at the hearing on August 8, 2022, there are several matters the Court considers it must address before reaching a conclusion on this motion. These are whether the distinction in law between the Federal Cabinet and the Governor in Council has a bearing on the decision to be made, and the effect of the other claims of privilege raised by the Respondent in addition to the s. 39 claims.
A. Is the distinction between Cabinet and the Governor in Council relevant to this motion?
[50] The Respondent argues that the material requested under Rule 317 must come from the “federal board, commission or other tribunal” responsible for the impugned decision, and that the Applicant’s Rule 317 Request pertained to material that was before the GIC as the ‘tribunal’ pursuant to s. 2 of the Federal Courts Act and not the Cabinet. This argument is based on the constitutional distinction between the GIC and the Cabinet whereby the legal powers of the state are vested in the GIC as the formal executive and decision-maker, while the Cabinet is the forum for political deliberation.
[51] The Respondent’s position is supported by s. 13 of the Constitution Act, 1867, 30 & 31 Vict, c 3, which defines the GIC, not Cabinet, as a legal institution, and by the language of s. 39 of the CEA, which acknowledges the distinction between the bodies. See also British Columbia (Attorney General) v Provincial Court Judges Association of British Columbia, 2020 SCC 20 at paras 95-97 [BC Judges], citing Nicholas d’Ombrain, “Cabinet Secrecy” (2004), 47(3) Canadian Public Administration 332, p 335.
[52] In the Court’s view, while this argument is constitutionally correct, it ignores the reality that the Cabinet, informed by the discussions before the IRG, was the decision maker responsible for the declaration of the Emergency Proclamation and subsequent regulations.
[53] The Respondent’s attempt to distinguish the Cabinet and IRG from the GIC is dissociated from constitutional convention and the practical functioning of the executive.
[54] In Tsleil Waututh Nation v Canada (Attorney General), 2017 FCA 128 at para 19 [TWN], the Federal Court of Appeal deemed the terms ‘Cabinet’ and ‘Governor in Council’ to be interchangeable in its discussion of the effect of s. 39 of the CEA:
Mixed in with its motion are issues concerning section 39 of the Canada Evidence Act, R.S.C. 1985, c. C-5, the provision that allows Canada to assert that certain information considered by the Governor in Council, commonly called the Cabinet, cannot be disclosed.
[emphasis added].
[55] As noted by Peter Hogg, “[m]odern statutes […] always grant powers to the Governor General in Council […] when they intend to grant powers to the cabinet […] in the certain knowledge that the conventions of responsible government will shift the effective power into the hands of the elected ministry where it belongs”: Peter W. Hogg, Constitutional Law of Canada, 5th ed (Toronto: Thomson Reuters Canada, 2021), at § 1:14, Convention and law [Hogg]. Thus, “[w]here the Constitution or a statute requires that a decision be made by the “Governor General in Council” […] [t]he cabinet (or a cabinet committee to which routine Privy Council business has been delegated) will make the decision, and send an “order” or “minute” of the decision to the Governor General for signature (which by convention is automatically given): Hogg at § 9:5, The cabinet and the Privy Council [emphasis added].
[56] Decisions of the GIC are always de facto made by Cabinet and not by the GIC itself. To conclude otherwise would effectively prevent any Court from reviewing materials relied upon by the Cabinet under any circumstances, even where confidentiality under s. 39 is never invoked. Thus, where s. 17(1) of the Emergencies Act authorizes the GIC to declare a public order emergency, this must be understood as conferring power upon Cabinet and/or its committees.
[57] The CCLA, in its written argument, questioned whether the IRG was a Cabinet Committee. The CCF did not take that position when it was put to them directly during the hearing. Indeed, it argued the contrary as necessary to support their application.
[58] While I don’t consider it necessary to decide the question, it seems to me that the proposition that the IRG is not a Cabinet Committee is dubious given its composition and mandate. It is clear that the IRG’s consideration of reports about the situation across the country and attempts to deal with it fed directly into the decision made by Cabinet on February 13, 2022 to invoke the Act. In that respect, it was no different from other committees of Cabinet that consider issues, options and recommendations before they are presented to Cabinet for decision.
[59] Those in attendance at the IRG meetings, in addition to Ministers, were all senior federal public servants. The IRG was not a consultative body involving third parties outside the government as the CCLA initially thought it might be. This could, of course, have been made clear at the outset of these proceedings had the Respondent been prepared to disclose the composition of the IRG.
[60] While the Respondent maintained its argument about the legal distinction to be made between Cabinet and the GIC at the hearing, the delivery of the redacted materials rendered that legal distinction immaterial.
B. Scope of the motion
[61] As noted above, the CCF seeks an order from the Court for the delivery of unredacted copies of any item listed in the Section 39 Certificates on a counsel-only basis and subject to a confidentiality undertaking. The Second Section 39 Certificate describes each of the Cabinet and IRG minutes and the IRG annotated agendas and the privilege claims over the content of each.
(a) Relevance of the Cabinet and IRG minutes and IRG Annotated Agendas.
[62] Material requested under Rule 317 must be relevant to the application, as determined with reference to the grounds stated in the Notice of Application: Athletes 4 Athletes Foundation v Canada (National Revenue), 2020 FCA 41 at para 26, citing TWN at para 109.
[63] The IRG and Cabinet minutes are relevant and thus producible pursuant to Rules 317 and 318, as they provide an account of the collective reasoning process engaged in by members of these two bodies in reaching the decision under review. The IRG played a central role in the Cabinet’s decision to issue a declaration of public order emergency, as indicated by the Section 58 Explanation, which states that this decision was informed by “robust discussion” at the meetings of the IRG.
[64] The reasonableness of the decision remains to be determined at a later date. Without the inclusion of the IRG and Cabinet minutes, redacted as they are, the Court may have concluded that the record was incomplete.
(b) Request for production of electronic records
[65] As noted above, the Applicant’s Written Representations do not contain any allegations of fact or arguments pertaining to electronic records as referenced in the Rule 317 Request, and do not list this request as one of the declarations sought. Unlike the Cabinet and IRG minutes, the existence of the requested electronic records is speculative and their scope undefined. The reference to electronic records lacks the requisite degree of specificity for a request under Rule 317: Maax Bath Inc v Almag Aluminum Inc, 2009 FCA 204 at paras 10-11.
[66] Furthermore, the Applicant’s written submissions have not established the relevance of these electronic records to the decision of the GIC, as the enactment of the Emergency Proclamation was a decision taken by Cabinet as a whole and not by any ministers in particular. The relevance of electronic communications of individual ministers cannot be deemed self-evident in light of the convention of cabinet solidarity and the collective responsibility for the decisions of the cabinet: Hogg at § 9:7, Ministerial responsibility.
(c) Effect of the redactions
[67] The CCF wishes to have its counsel review unredacted copies of the delivered materials in order to support its application for judicial review. As noted above, the materials delivered to the parties by the Respondent are subject to redactions pursuant to privilege claims under sections 37 and 38 of the CEA, claims of solicitor-client privilege and lack of relevance to the underlying application, each of which have to be taken into consideration in addition to the s. 39 Cabinet Confidence claims.
[68] The focus of argument on the motion has been on the s. 39 redactions, but a considerable amount of the redacted text appears to fall within the scope of the other claims of privilege. For example, in the minutes of the IRG for February 10, 2022, identified as Document 1-22IRG-C, six of the ten pages bear notations indicating that redactions were made pursuant to one or more of the three statutory provisions and, in some instances, solicitor-client privilege. Some redactions in the document are exclusively claimed as Cabinet Confidences; other notations cite s. 39 as well as sections 37 and 38 and solicitor-client privilege.
[69] The annotated agenda for the IRG meeting of February 12, 2022 is the sole document bearing redactions attributed exclusively to s. 39. Solicitor-client privilege is cited as the basis for redactions in four documents overlapping with s. 39 and s. 38 claims. Section 38 is claimed in six documents, often overlapping with s. 39 claims. Two entire pages of the