British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia2020 SCC 20 (38381)

“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.”

The SCC (9:0) allowed the appeal and quashed the Master’s order for production of Cabinet submission.

Justice Karakatsanis wrote as follows (at paras. 6-8, 66-68, 72, 87):”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.
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.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….
As this Court underscored in Criminal Lawyers’ Association, at para. 29, “each branch will be unable to fulfill its role if it is unduly interfered with by the others”. Several doctrines work to prevent undue interference, including the secrecy afforded judicial deliberations (MacKeigan v. Hickman, [1989] 2 S.C.R. 796), and the recognition of the privileges, powers and immunities enjoyed by the Senate, the House of Commons and the legislative assemblies: Constitution Act, 1867, preamble and s. 18; New Brunswick Broadcasting Co.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. These doctrines are a corollary to the separation of powers because they help to protect each branch’s ability to perform its constitutionally‑assigned functions.

The executive, too, benefits from a degree of protection against undue interference. Deliberations among ministers of the Crown are protected by the constitutional convention of Cabinet confidentiality. Constitutional conventions do not have direct legal effect: Reference re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753, at pp. 880‑83; Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at para. 98. However, as I will explain in greater detail, the common law respects the confidentiality convention and affords the executive public interest immunity over deliberations among ministers of the Crown: see CareyBabcock v. Canada (Attorney General), 2002 SCC 57, [2002] 3 S.C.R. 3, at paras. 18‑19 and 60.

Where the executive plays a role in formulating a government’s response to a judicial compensation commission’s recommendations, Cabinet will generally determine the position taken by the executive. Ministers’ deliberations concerning their appreciation of the recommendations and how the government should respond will usually be protected by Cabinet confidentiality.

Routine judicial inspection of a confidential Cabinet document would reveal to a member of the judiciary the content of Cabinet deliberations. 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. That is especially so where the judge is directly affected by the response resulting from those deliberations. As with adjudication of the Bodner review itself, judicial inspection is appropriate in this context only where it is strictly necessary.

To summarize, the object of Bodner review is the government’s response to the commission’s recommendations, which will generally consist of the government’s decision to depart from the commission’s recommendations and the reasons given for that decision. The submissions to the commission, the commission’s recommendations, and the government’s response accordingly form the core of the record on Bodner review. Certain forms of additional evidence are admissible if they are relevant to determining whether any part of the Bodner test has been met, including whether the government’s response is grounded in an improper or colourable purpose. However, where a party seeking Bodner review requests the production of a confidential Cabinet document, the party must first establish there is some basis to believe that the document may contain evidence which tends to show that the government failed to meet a requirement described in Bodner. Only then will the reviewing court examine the document in private to determine whether it, in fact, provides some evidence which tends to show that the government failed to meet its constitutional obligations. If the document does provide such evidence, the court must then determine whether any other rule of evidence, such as public interest immunity, bars its production.”