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JUDGES - Compensation - Independence of judiciary - Financial security

Friday, July 31, 2020 @ 1:14 PM  

Appeal from a judgment of the British Columbia Court of Appeal dismissing the Attorney General of British Columbia’s appeal of decisions requiring it to produce submissions to Cabinet concerning judicial compensation recommendations. In October 2016, the Judicial Compensation Commission (Commission) submitted its final report to the Attorney General and made recommendations for the 2017‑20 period. The Attorney General of British Columbia made a submission to Cabinet concerning the Commission’s recommendations and the government’s response. The Attorney General subsequently moved to pass a resolution rejecting the Commission’s recommended increase, proposing a reduced increase. The Legislative Assembly passed the resolution. The Provincial Court Judges’ Association (Association) petitioned for judicial review of the Legislative Assembly’s resolution. In anticipation of the hearing of their petition on the merits, the Association asked the Attorney General to produce the Cabinet submission relied on in preparing the government’s response. The Attorney General refused. The Association sought an order to require the Attorney General to produce the submission. The master hearing the motion found that the confidential Cabinet submission requested by the Association was relevant and not protected by public interest immunity ordered the Attorney General to produce the Cabinet submission. That decision was upheld by Superior Court and the Court of Appeal.  The Attorney General appealed.

Held: Appeal allowed. The form of judicial review described in Bodner v. Alberta 2005 SCC 44, [2005] 2 S.C.R. 286 applied to the appeal. The requirement of relevance alone failed to adequately protect the competing constitutional imperatives that arose when a party seeking Bodnar review requested production of a confidential Cabinet document. Where a party seeking Bodnar review requested that the government produce a document relating to Cabinet deliberations, it first had to establish that there was some basis to believe that the document might contain evidence tending to show that the government failed to meet one of the requirements described in Bodnar. Only then would the government be required to produce the document for judicial inspection. If the document did provide some evidence which tended to show that the government’s response did not comply with the constitutional requirements, the document would be brought before the court to determine whether its production was barred by public interest immunity or another rule of evidence invoked by the government. The first issue was whether the Association made the requisite threshold showing. Neither the executive nor the Legislative Assembly put the Cabinet submission in issue. Neither the government’s response nor the Legislative Assembly’s resolution referred to the Cabinet submission. The affidavit in response to the petition for review filed by the Attorney General made no reference to the Cabinet submission. There was nothing on the face of the record that indicated that the Cabinet submission might contain evidence which tended to show that the government failed to meet a constitutional requirement. The Association failed to make the requisite showing. It did not provide any evidence or point to any circumstances that suggested that the Cabinet submission might indicate that the government did not meet the standard required by Bodnar. The Attorney General was not required to produce the document for examination by the Court. It was therefore unnecessary to consider whether public interest immunity applied.

British Columbia (Attorney General) v. Provincial Court Judges' Association of British Columbia, [2020] S.C.J. No. 20, Supreme Court of Canada, R. Wagner C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, S. Côté, R. Brown, M. Rowe, S.L. Martin and N. Kasirer JJ., July 31, 2020. Digest No. TLD-July272020011-SCC