The Prospects for Candour in Canada: Solutions for the Limited Record Problem
In previous posts, I introduced the duty of candour in judicial review proceedings (here), explained the limited content of the record for judicial review purposes in Canada (here and here) and critically analyzed the current state of the law (here). In this post, I discuss some solutions for the limited record problem: taking a muscular approach to public interest immunity, liberally interpreting procedural provisions relating to the record; and drawing negative inferences where a respondent has failed to disclose material on a relevant point. Each of these solutions has been adopted or proposed in recent judicial decisions. Not only do these decisions respond effectively to the problems created by a limited record for judicial review, they can be interpreted as concrete manifestations of a duty of candour. Indeed, I will suggest, these instances demonstrate that a duty of candour already exists as a general principle of Canadian administrative law. In formulating these thoughts, I benefited from discussions with Marie-Hélène Lyonnais and Peter Wills.
Muscular Approaches to Public Interest Privilege
In CM v. Alberta, 2022 ABQB 462, where the applicants challenged the lawfulness of a decision easing COVID-19 restrictions, the Government of Alberta asserted public interest privilege over Cabinet minutes and a PowerPoint presentation made to Cabinet. Dunlop J rejected the assertion of privilege. In the particular context of this case, where the applicants alleged that the Chief Medical Officer of Health had unlawfully subdelegated her authority to Cabinet (and/or acted under the dictation of Cabinet), “even if there is a public interest in keeping Cabinet decisions secret in general, in this case the interests of justice tip the balance in favour of disclosure” (at para. 12). This was because neither the PowerPoint presentation nor the minutes contained “Cabinet members’ statements or Cabinet discussions or deliberations” (at para. 8): “The documents before me do not reveal Cabinet deliberations. They contain information and options provided by the Chief Medical Officer of Health to Cabinet, one recommendation, and Cabinet decisions” (at para. 13). Accordingly, the assertion of privilege could not succeed, Dunlop J having taken a muscular approach to the scope of public interest privilege, hewing closely to the deliberations/decisions distinction.
In my view, this approach is appropriate, as assertions of privilege should be met with careful scrutiny (Canada (Citizenship and Immigration) v. Canadian Council for Refugees, 2021 FCA 72, at para. 108). In its most recent analysis of public interest privilege (British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia, 2020 SCC 20, noted here) the Supreme Court of Canada was cautious about giving access to Cabinet deliberations but it is not clear that the same caution should apply to Cabinet documents (see similarly Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2022 ONCA 74, at paras. 75-76). It is also notable that even cabinet deliberations do not benefit from an absolute bar on disclosure: Nova Scotia (Attorney General) v. Judges of the Provincial Court and Family Court of Nova Scotia, 2020 SCC 21, noted here.
Liberal Interpretations of Procedural Provisions
Procedural provisions relating to the content of the record on judicial review have been described as “tools to compel the production of evidence or the provision of information”: Canada (Citizenship and Immigration) v. Canadian Council for Refugees, 2021 FCA 72, at para. 107.
A good example is Canada Mink Breeders Association v. British Columbia, 2022 BCSC 1731. At issue here was a Cabinet decision taken during the COVID-19 pandemic to phase out mink farming in the province by 2025. In defending the lawfulness of the decision, the respondents only produced some of the material that was before Cabinet when the decision was taken.
The applicants sought, under s. 17 of the Judicial Review Procedure Act, which allows a reviewing court to compel production of a record of decision, “specific disclosure of the complete record of documents before those involved in the cabinet decision” (at para. 16). Notice that the applicants sought Cabinet documents; they did not seek to have cabinet deliberations disclosed.
Milman J held that it was appropriate to order disclosure “particularly [of those documents] that will enable the court to reconstruct what was before cabinet when it made the impugned decision” (at para. 23). Disclosure was ordered of “the documents in [the respondents’] possession or control reflecting the information and submissions that were directly or indirectly considered by cabinet in making the impugned decision” (at para. 35). The “scope of the record” flowed from Milman J’s analysis of the applicant’s pleadings (at para. 34), which cast doubt on whether cabinet used its powers for proper purposes (at para. 24).
It is also notable that in Canadian Constitution Foundation v. Canada (Attorney General), 2022 FC 1233, Mosley J poured cold water on the proposition that Cabinet minutes and minutes of a Cabinet sub-committee should not be disclosed for the purposes of the judicial review of Cabinet’s decision to proclaim a public order emergency:
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 (at para. 39).
As in Mink Breeders, the pleadings made these documents relevant. Disclosure of the documents could, thus, be required. Giving a liberal interpretation to the definition of the “record” and to procedural provisions relating to disclosure allows applicants and respondents to put more detailed material before the reviewing court.
Even where a government respondent is entitled to assert privilege and does so successfully, a court may nonetheless hold the assertion of privilege against the respondent. As the Supreme Court of Canada noted in Babcock v. Canada (Attorney General), 2002 SCC 57,  3 SCR 3, at para. 36, “the refusal to disclose information may permit a court to draw an adverse inference”.
For example, in Gitxaala Nation v. Canada, 2016 FCA 187,  4 FCR 418, a variety of parties challenged the Order in Council authorizing the ‘Northern Gateway’ pipeline project. A central issue was whether the federal Cabinet had discharged its duty to consult Indigenous peoples before issuing the Order in Council. On this, the reasons and record were deficient. It was clear from the Order in Council that the project had been approved because it was “required by present and future public convenience and necessity, … [would] diversify Canada’s energy export markets and [would] contribute to Canada’s long-term economic prosperity” (at para. 313). But the Order in Council was virtually silent on whether and how the Crown had discharged the duty to consult, reciting only that consultation had occurred. Indeed, the materials that might have shed light on the duty to consult had been the subject of a privilege claim: “Canada was not willing to provide even a general summary of the sorts of recommendations and information provided to the Governor in Council” (at para. 318). In the circumstances, the Order in Council was unlawful:
Nowhere in the Order in Council does the Governor in Council express itself on whether Canada had fulfilled the duty to consult. This raises the serious question whether the Governor in Council actually considered that issue and whether it actually concluded that it was satisfied that Canada had fulfilled its duty to consult. All parties acknowledge that the Governor in Council had to consider and be satisfied on the issue of the duty to consult before it made the Order in Council. Similarly, the Order in Council does not suggest that the Governor in Council received information from the consultations and considered it.There is nothing in the record before us to assist us on these matters. This is a troubling and unacceptable gap (at paras. 321-323. Compare Coldwater FN v. Canada, 2020 FCA 34, where the federal Cabinet voluntary offered additional information to fill what might otherwise have been a troubling and unacceptable gap).
Here, Canada was perfectly entitled to claim privilege. But doing so ended up casting doubt on the cogency of its reasons for concluding that it had complied with the duty to consult. A negative inference was drawn against it. Put another way, a failure to be candid can cost a government respondent: a court may infer that, on a critical issue, neither its reasons nor the record offered adequate justification for the challenged decision.
Each of these instances is, I suggest, an example of Canadian courts giving concrete effect to a general duty of candour. There seems to be a duty of candour after all, with these cases being specific manifestations of the duty. Taking a muscular approach to public interest privilege, liberally interpreting procedural provisions and drawing negative inferences are different ways of giving effect to a duty on respondents to be candid in defending applications for judicial review. This is not — yet — the positive duty that has been recognized in other jurisdictions, but the implication of these decisions is that respondents claim privilege at their own risk.
It is important to note that a duty of candour does not necessarily equate to a duty of transparency. Privilege is “not an all-or-nothing proposition”, as an order accepting a claim of privilege can be narrowly tailored to ensure transparency (Lukács v. Canada (Transportation Agency), 2016 FCA 103, at para. 13), for example by putting sensitive material before the reviewing court but not on the public record; and, as we have just seen, a respondent may voluntarily offer access to sensitive material, or a public summary of sensitive material. Courts can also use their inherent powers to appoint special advocates, or amicus curiae, who have access to sensitive information and report back to the court without fully informing the parties (Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38,  2 SCR 326). By the same token, courts can order that certain of their proceedings be held in camera or that material be disclosed only to counsel: Canada (Citizenship and Immigration) v. Canadian Council for Refugees, 2021 FCA 72, at paras. 118-119. In this regard, “[t]he measures to which a court can resort are limited only by its creativity and the obligation to afford procedural fairness to the highest extent possible” (ibid., at para. 120). Simply put, courts can tailor the duty of candour to the circumstances and ensure that disclosure does not imperil the public interest.
This content has been updated on April 12, 2023 at 18:38.