The Prospects for Candour in Canada: Why a Limited Record is Problematic
Having described in previous posts the limited content of the record for judicial review purposes in Canada (here and here), I turn now to critical analysis. I will suggest in this post that a limited record can undermine judicial review by preventing courts from performing their constitutionality duty of assessing the lawfulness of administrative action and by interfering with the open-justice principle, which is inextricably linked with the constitutional right of freedom of expression. Each of these concerns is grounded in constitutional considerations unique to Canada but also maps onto a rationale for the duty of candour recognized elsewhere in the common law world.
In Canadian administrative law, reasonableness is the presumptive standard of review of administrative decisions. Save for situations where there is a statutory right of appeal, a legislatively prescribed standard of review or a need to apply correctness review to ensure the coherence of the legal system, the applicable standard will be reasonableness. Reasonableness involves respectful but robust scrutiny of the reasons offered for a decision with a view to determining whether they adequately justify the conclusions reached by the decision-maker. In conducting reasonableness review, the reviewing court should read these reasons in light of the record.
Reasons will not always be available, where it is not feasible to provide them (such as with the adoption of a by-law by a municipality) but in most instances, reasoned decision-making is “the lynchpin of institutional legitimacy” for the administrative state (Vavilov, at para. 74). Indeed, “reviewing courts must keep in mind the principle that the exercise of public power must be justified, intelligible and transparent, not in the abstract, but to the individuals subject to it. It would therefore be unacceptable for an administrative decision maker to provide an affected party formal reasons that fail to justify its decision, but nevertheless expect that its decision would be upheld on the basis of internal records that were not available to that party” (Vavilov, at para. 95).
The difficulty created by a limited record is that it makes the task of assessing the reasonableness of a decision much more difficult, if not impossible. This in turn creates a constitutional problem, for there is a guaranteed constitutional minimum of judicial review. The Supreme Court of Canada held in Crevier v. A.G. (Québec),  2 SCR 220 that an administrative decision-maker “cannot constitutionally be immunized from review of decisions on questions of jurisdiction” (at p. 236). The reason given by Laskin CJ was that giving an administrative decision-maker the authority “to determine the limits of its jurisdiction without appeal or other review” (at p. 237) would usurp the functions of the courts.
As the concept of jurisdiction has ebbed and flowed in Canadian law, the contours of this limit have shifted and are somewhat blurred. At a minimum, it is clear that it is constitutionally impermissible to “immunize administrators completely from judicial review, whether that be done by full privative clauses or the withholding of evidence or explanations essential for a meaningful review” (Canada (Citizenship and Immigration) v. Canadian Council for Refugees, 2021 FCA 72, at para. 102, emphasis added. See also Yatar v. TD Insurance Meloche Monnex, 2022 ONCA 446, at para. 40).
Some courts have taken that view that this guarantee of a meaningful review extends to assessing the reasonableness of all aspects of administrative decisions. In Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161 the majority of the Federal Court of Appeal (in an analysis subsequently endorsed by a unanimous panel in BCE Inc. v. Québecor Média Inc., 2022 FCA 152, at para. 58) went somewhat further. Gleason JA observed that “[a] complete bar on the availability of judicial review for any type of issue would offend the rule of law” (at para. 112, emphasis added) and held accordingly that “review is available under the reasonableness standard…even in the face of a privative clause” or a clause granting a limited right of appeal (at para. 117). As I have explained elsewhere, I agree with this broader view.
Regardless of whether one adopts the narrower or broader view of the guaranteed constitutional minimum of judicial review, it is clear that a limited record can stand in the way of meaningful oversight. This risk is particularly acute in non-adjudicative settings. Two recent decisions provide helpful illustrations of this proposition.
In CM v. Alberta, 2022 ABQB 462, the applicants challenged a a decision loosening various COVID-19 restrictions, including the removal of a mask-wearing requirement for elementary school students. There was controversy over whether the decision had been made by the provincial health officer or whether she had acted under dictation from the provincial cabinet. Acting under dictation is unlawful. But it was not clear from the decision or the record provided to the reviewing court who had, in substance, taken the decision. The challengers sought disclosure of cabinet minutes and a PowerPoint presentation. Dunlop J ordered disclosure on the basis that the requested documents did not reveal cabinet deliberations and thus fell outside the scope of public interest immunity. The broader point is that without this material, it would not ultimately have been possible for the court to determine whether the decision had been properly made.
In Canadian Constitution Foundation v. Canada (Attorney General), 2022 FC 1233, Mosley J dealt with a motion relating to applications for judicial review of the decision by the federal government to proclaim a public order emergency in Ottawa in February 2022. The record originally delivered to the Federal Court consisted essentially of the text of the decision itself and measures made under the authority of the decision (see para. 15): other material was withheld on the basis that it was protected by cabinet confidentiality. The applicants sought disclosure of minutes of meetings of an entity called the Incident Response Group (a committee of ministers and senior officials feeding information and recommendations to cabinet) in the days before the proclamation, and the minutes of the cabinet meeting on the day of the proclamation.
After the applicants’ disclosure motion was filed, the respondents provided redacted minutes but maintained that the record for decision as originally delivered was complete: this was the information before the Governor in Council when, acting on the advice of ministers, it made the proclamation and measures. Mosley J rejected this proposition (at paras. 62-64) but the facts illustrate how a limited record might obfuscate the reasons for a decision and prevent meaningful judicial review. If a court has before it only the decision itself, with no supporting reasons, it must attempt to apply reasonableness review in a vacuum.
True, in Vavilov, the Supreme Court of Canada suggested that reasonableness review can be conducted in the absence of reasons (at paras. 136-138) but the cases therein mentioned involved situations that did not lend themselves to the production of formal reasons and where the record could reveal the rationale of a decision. These passages from Vavilov are not, in my view, best read as an invitation to a decision-maker to escape judicial scrutiny by refusing to provide reasons or a record. As has been said elsewhere, candour is the “constitutional corollary” of deference (New Zealand Fishing Industry Association Inc v. Minister of Agriculture and Fisheries,  NZCA 198,  1 NZLR 544, at p. 554, per Cooke P)
In general, a limited record for review will affect a court’s ability to exert meaningful scrutiny over the lawfulness of administrative action. With adjudicative decisions supported by reasons, the limited record is unlikely to prevent the courts from performing their constitutional duty of supervising the lawfulness of public administration. But with non-adjudicative decisions, the risk that this will occur is greater.
The open justice principle is an important principle of Canadian law. It is “one of the hallmarks of a democratic society” (Re Southam Inc. and The Queen (No.1) (1983), 41 O.R. (2d) 113 (C.A.), at p. 119) and is “deeply embedded in the common law tradition” (Canadian Broadcasting Corp. v. New Brunswick (Attorney General),  3 SCR 480, at para. 21).
For example, in A.G. (Nova Scotia) v. MacIntyre,  1 SCR 175, the Supreme Court of Canada considered whether journalists could be permitted to examine the fruits of a search warrant and the warrant itself after it had been executed. Dickson J accepted that it might be appropriate to restrict access to determinations about whether to grant a search warrant and to prevent the general public from accessing warrants where nothing had been seized. However, “[a]t every stage the rule should be one of public accessibility and concomitant judicial accountability; all with a view to ensuring there is no abuse in the issue of search warrants, that once issued they are executed according to law, and finally that any evidence seized is dealt with according to law” (at p. 186). Public access helps to ensure that powers are used non arbitrarily (see also Re Southam). Accordingly, while access “can be denied when the ends of justice would be subverted by disclosure or the judicial documents might be used for an improper purpose”, the “presumption…is in favour of public access and the burden of contrary proof lies upon the person who would deny the exercise of the right [of public access]” (at p. 189).
Indeed, the open-justice principle is tied to the Charter because of its importance for freedom of expression:
The principle of open courts is inextricably tied to the rights guaranteed by s. 2(b). Openness permits public access to information about the courts, which in turn permits the public to discuss and put forward opinions and criticisms of court practices and proceedings. While the freedom to express ideas and opinions about the operation of the courts is clearly within the ambit of the freedom guaranteed by s. 2(b), so too is the right of members of the public to obtain information about the courts in the first place (Canadian Broadcasting Corp. v. New Brunswick (Attorney General),  3 SCR 480, at para. 21).
The open-justice principle, with its constitutional underpinning, has been extended to administrative tribunals. Rouleau J applied it to immigration detention reviews in Southam Inc. v. Canada (Minister of Employment and Immigration),  3 FC 329, observing (at p. 336) that “[t]he legitimacy of such tribunals’ authority requires that confidence in their integrity and understanding of their operations be maintained, and this can be effected only if their proceedings are open to the public” (see also Toronto Star v. AG Ontario, 2018 ONSC 2586, at paras. 54-56). More recently, in Canadian Broadcasting Corporation v. Ferrier, 2019 ONCA 1025, Sharpe JA determined that the open justice principle applied to a preliminary stage in a police board disciplinary process, noting that the Charter guarantee of freedom of expression gives individuals a right to attend police board hearings and concluding that the “presumption of an open hearing” applied (at para. 59. See also Langenfeld v. Toronto Police Services Board, 2019 ONCA 716).
The concern in these cases is that restrictions on what is disclosed in judicial and administrative proceedings can increase the risk of arbitrary decisions and sap the legitimacy of administrative decision-makers. Similarly, decisions which are shrouded in secrecy because relevant information is not made available to those challenging the legality of the decisions are more likely to be arbitrary and to undermine public confidence in the administrative state. The same concerns that underlie the open justice principle militate in favour of an expansive record for the purposes of judicial review.
Furthermore, because these concerns are inextricably related to the Charter guarantee of freedom of expression, they make a compelling case for more comprehensive disclosure. In Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23,  1 SCR 815, the Court commented that “there is a prima facie case that s. 2(b) may require disclosure of documents in government hands where it is shown that, without the desired access, meaningful public discussion and criticism on matters of public interest would be substantially impeded”: “Open government requires that the citizenry be granted access to government records when it is necessary to meaningful public debate on the conduct of government institutions” (at para. 37).
In judicial review proceedings, the “meaningful public debate” is about whether the decision being challenged is reasonable. Impeding the courts from adjudicating on whether a decision-maker acted reasonably by limiting the record to which the judge (and counsel for the parties) has access undermines this constitutionally guaranteed meaningful public debate. There is, accordingly, in the Supreme Court’s own terms, a “prima facie case” for “disclosure of documents in government hands” where the reasonableness of the “conduct of government institutions” is at issue.
None of the cases cited in this section stands for the proposition that there is an absolute right to disclosure of relevant material in all circumstances. In Criminal Lawyers’ Association, the Court made clear that the prima facie case can be rebutted by the presence of other compelling considerations. Similarly, a duty of candour does not require divulging every last piece of relevant information regardless of the consequences of disclosure. But this only means that candour has limits, not that no duty of candour exists or should be recognized. In the next post, I will discuss some recent cases addressing the limits of the duty of candour.
The concerns for ensuring lawfulness and open justice are analogous to the concerns that have animated the duty of candour elsewhere in the common law world.
First, candour supports the rule of law by permitting courts to evaluate the lawfulness of government action, based on complete information about the decision-making process and decision. In Canada, this concern has constitutional underpinning.
Second, both courts and the executive have a shared interest in ensuring lawfulness. In Canada, the citizenry as a whole shares that interest, which is inextricably related to s. 2(b) of the Charter and the constitutional guarantee of freedom of expression. Indeed, the case for candour is a fortiori in Canada: whereas the basis of the duty of candour in comparable jurisdictions is the common law, in Canada the duty of candour can be grounded in the Constitution.
This content has been updated on March 23, 2023 at 00:44.