Judicial Review and Secrecy

A new year is almost upon us. Here is a provocative thought for 2015. Does more judicial review of government action mean that more judicial review will be conducted secretively?

Over recent decades, the grounds on which official action can be challenged have increased in number and scope. Legitimate expectations and factual errors are now reviewable, for example. And the duty of fairness, for example, is now a robust judicial creature capable of biting on a wide range of administrative failures.

But this sometimes leads to tension with the principle of open justice, that court proceedings should be accessible to the public. The tentacles of judicial review have also reached into sensitive areas of policy, such as immigration control and national security. At the same time, however, the state often has a very strong interest in keeping some matters secret, especially when it comes to national security. This prompts legislative interventions to provide for secret procedures or the invocation of public-interest immunity to keep prying eyes from sensitive information.

The question is prompted in part by the recent decision of the Supreme Court of Canada to grant leave in a recent ‘secrets’ case, Fédération autonome de l’enseignement c. Commission scolaire de Laval, 2014 QCCA 591, which I blogged about here. The case involves a teacher who was fired by the elected members of the local school board after a meeting held behind closed doors. He contested the decision before an arbitrator and sought to compel testimony from the members. Once upon a time this sort of case would never have arisen. Nowadays, the teacher can challenge the decision on a variety of grounds and such a challenge might be impossible without testimony from those involved. But the elected members might reasonably argue that a level of deliberative secrecy is beneficial to them in performing their functions. It will be interesting to see how the Court resolves the problem: it could discount the members’ claims altogether; it could permit them to testify in secret; it could invoke public-interest immunity; or it could use discretion to allow certain evidence to be filed secretively (a fascinating suggestion that would allow judicial review cases to go forward in public, but secretively).

In an ideal world, the increased reach of judicial review would be accompanied by increased transparency: it would be a win-win for the rule of law. But we do not live in an ideal world. So I ask: are we in a better place if there is more judicial review but some of it is conducted in secret or secretively?

This content has been updated on December 31, 2014 at 15:39.