Canada is the only Westminster jurisdiction to have enacted a near-absolute immunity for Cabinet confidences. Parliament entrenched executive supremacy over the disclosure of Cabinet confidences at the behest of Prime Minister Pierre Elliott Trudeau\u2019s Liberal government, which did not trust the courts to properly protect its political secrets. To ensure the highest level of protection to Cabinet confidences, Parliament adopted a broad and robust statutory scheme, the scope of which went beyond the protection afforded to this type of information under constitutional conventions and the common law. In doing so, Parliament has effectively removed from the courts the power to inspect and order the production of Cabinet confidences, making it extremely difficult to challenge Cabinet immunity claims. Indeed, litigants and judges do not have access to the information required to determine whether such claims are made reasonably and in good faith by the executive branch.[1]<\/a><\/p>\n The question at the heart of this article is whether this special statutory regime is constitutional. Under the common law, which applies at the provincial level in Canada, the courts\u2019 power to inspect and order the production of Cabinet confidences is now considered a constitutional imperative. In Carey<\/em> v.<\/em> Ontario<\/em>, the Supreme Court of Canada (SCC) concluded that it would be \u201ccontrary to the constitutional relationship that ought to prevail between the executive and the courts in this country\u201d to deprive the judiciary of this power.[2]<\/a> Despite this statement, courts have held that Parliament could, pursuant to the doctrine of parliamentary sovereignty, provide a near-absolute statutory immunity to the government over Cabinet confidences. Consequently, courts have ruled that this kind of immunity does not violate the Constitution.[3]<\/a> The courts\u2019 position on this issue appears conceptually inconsistent: it is either constitutional to deprive the judiciary of the power to inspect and order the production of Cabinet confidences, or it is not, as the common law and statute law must both comply with the same constitutional rules.<\/p>\n In its seminal 2002 decision on Cabinet immunity under statute law, Babcock<\/em> v.<\/em> Canada (A.G.)<\/em>, the SCC did not address this inconsistency. In nine paragraphs, at the very end of its reasons, the SCC held that executive supremacy over Cabinet immunity did not violate the unwritten principles of the rule of law, the separation of powers, and judicial independence.[4]<\/a> Based on historical considerations, and the fact that a weak form of judicial review is possible, the SCC further stated that the statutory regime did not fundamentally alter the relationship between the executive and the judicial branches of the state. It thus confirmed that the near-absolute nature of Cabinet immunity at the federal level is not only legal, but also legitimate. The SCC reached its conclusion by embracing a very thin conception of the rule of law and a very narrow interpretation of the separation of powers. In doing so, the SCC disregarded the wisdom of Carey<\/em> and the common law legacy of Cabinet immunity.<\/p>\n The objective of this article is to show that the near-absolute statutory immunity granted to Cabinet confidences violates the rule of law and the provisions of the Constitution. I will focus on section\u00a039 of the Canada Evidence Act <\/em>(CEA<\/em>),[5]<\/a> which deprives judges of the power to inspect and order the production of Cabinet confidences in litigation. The article is divided into two parts. In Part\u00a01, I will demonstrate that the SCC\u2019s very thin conception of the rule of law is of limited use as a normative framework to assess the legality of section\u00a039. To that end, I will turn to the thicker theory of law as justification. In Part\u00a02, I will demonstrate that section\u00a039 breaches the requirements of procedural fairness[6]<\/a> and intrudes upon the core, or inherent, jurisdiction and powers of provincial superior courts.[7]<\/a> I will argue that to comply with the rule of law and the provisions of the Constitution, Cabinet immunity claims should be decided by independent and impartial judges, following a fair decision-making process, in the course of which judges can inspect the documents and assess the public interest.<\/p>\n To determine whether section\u00a039 of the CEA<\/em> is consistent with the rule of law, it is first necessary to define what is meant by \u201crule of law\u201d. While the rule of law is an important political ideal, with deep historical roots going back to the Greeks and the Romans, there is no broad consensus on its precise meaning. All conceptions of the rule of law seek, to various degrees, to limit the powers of the state, to replace the often-arbitrary rule of men by a more rational rule of law. Beyond this basic idea, legal theorists tend to distinguish thin from thick conceptions of the rule of law. Thin conceptions are associated with positivist approaches to the rule of law while thick conceptions are associated with natural law approaches. In an influential article on the rule of law, Paul Craig describes the main differences between thin (or formal) and thick (or substantive) conceptions:<\/p>\n Formal conceptions of the rule of law address the manner in which the law was promulgated (was it by a properly authorised person, in a properly authorised manner, etc.); the clarity of the ensuing norm (was it sufficiently clear to guide an individual\u2019s conduct so as to enable a person to plan his or her life, etc.); and the temporal dimension of the enacted norm, (was it prospective or retrospective, etc.). Formal conceptions of the rule of law do not however seek to pass judgment upon the actual content of the law itself. They are not concerned with whether the law was in that sense a good law or a bad law, provided that the formal precepts of the rule of law were themselves met. Those who espouse substantive conceptions of the rule of law seek to go beyond this. They accept that the rule of law has the formal attributes mentioned above, but they wish to take the doctrine further. Certain substantive rights are said to be based on, or derived from, the rule of law. The concept is used as the foundation for these rights, which are then used to distinguish between \u201cgood\u201d laws, which comply with such rights, and \u201cbad\u201d laws which do not.[8]<\/a><\/p>\n This part of the article will define the scope of the rule of law conception that will then be used in Part\u00a02 to determine whether Parliament can confer on the government a near-absolute immunity over the production of Cabinet confidences through section\u00a039 of the CEA<\/em>. Part\u00a01 is divided into two subparts. In the first subpart, I will argue that the SCC has thus far adopted a very thin conception of the rule of law as an unwritten constitutional principle, one which is of limited use to assess the legality of legislation. In the second subpart, I will argue that the thicker theory of law as a culture of justification, which is implicit in the Canadian legal order, provides a better normative framework to this end because it imposes meaningful constraints on the state which, in turn, illuminate the flaws afflicting section\u00a039.<\/p>\n What conception of the rule of law has the SCC adopted to date? In the Canadian legal order, the rule of law is an \u201cunwritten constitutional principle\u201d, the existence of which stems implicitly from the preamble to the Constitution Act, 1867<\/em>[9]<\/a> and explicitly from the preamble to the Constitution Act, 1982<\/em>.[10]<\/a> The SCC has characterized the rule of law as a \u201cfundamental postulate of our constitutional structure\u201d[11]<\/a> lying \u201cat the root of our system of government.\u201d[12]<\/a> This depiction calls for two comments. First, despite its importance, the rule of law is only one of several unwritten constitutional principles, distinct from the separation of powers, judicial independence, federalism, democracy, and respect for minorities.[13]<\/a> The fact that the SCC has distinguished the rule of law from these principles suggests that it has a narrow conception of the rule of law. Second, Canada has a written Constitution, setting out its constitutional structure and outlining fundamental rights and freedoms. For reasons of certainty, predictability, and legitimacy, the SCC considers that judicial review of legislative action should be grounded in the text, not the unwritten principles, of the Constitution.[14]<\/a> As such, it gives more importance to the Big-C Constitution over the small-c constitution.[15]<\/a><\/p>\n The SCC\u2019s conception of the rule of law contains at least three elements. The first requires \u201cthe creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order.\u201d[16]<\/a> The second recognizes that \u201cthe law is supreme over officials of the government as well as private individuals, and thereby preclusive of the influence of arbitrary power.\u201d[17]<\/a> The third demands that \u201cthe relationship between the state and the individual must be regulated by law.\u201d[18]<\/a> In short, the rule of law presupposes: the existence of a legal order; within that legal order, legal rules must apply equally to the state and legal subjects; and the actions of the state must be authorized by legal rules. The SCC has recognized that there may be other components to the rule of law, but has not yet ruled on what else may be involved.[19]<\/a> While the three elements identified thus far are prerequisites to the existence of the rule of law, they do not impose any meaningful constraint on the state. They incorporate the idea of legal limits on state power, without attempting to define the boundaries imposed by these limits. These elements thus set out a \u201cskeletal version of the rule of law,\u201d[20]<\/a> which corresponds to a thin positivist conception of the rule of law, known as \u201crule by law\u201d. Under this conception, a legal rule is valid simply because it has been enacted by the proper authority under the proper procedure.[21]<\/a><\/p>\n The SCC\u2019s conception of the rule of law, as an unwritten constitutional principle, does not yet incorporate the principles of formal legality. Like \u201crule by law\u201d, \u201cformal legality\u201d is a thin conception of the rule of law. However, it goes beyond \u201crule by law\u201d by imposing certain constraints on the state. With the aim of ensuring that the law can guide the conduct of legal subjects efficiently, formal legality requires that legal rules be general, clear, public, prospective, coherent, possible to comply with, and relatively stable over time.[22]<\/a> In addition, it requires that state action be congruent with legal rules.[23]<\/a> While these principles are widely accepted among legal theorists,[24]<\/a> the SCC has so far refused to include them in its conception of the rule of law. It will only recognize and enforce the principles of formal legality where they are explicitly entrenched in the text of the Constitution. Hence, in British Columbia v. Imperial Tobacco Canada Ltd.<\/em>, the SCC upheld the validity of provincial legislation that targeted tobacco companies and held them retroactively liable for the healthcare expenses triggered by tobacco consumption, although the legislation was neither general nor prospective.[25]<\/a> According to the SCC, nothing in the text of the Constitution explicitly prohibited such measures in civil matters.[26]<\/a><\/p>\n To what extent can the unwritten rule of law principle, however understood, be used, as a normative framework, to assess the legality of legislation? The answer is threefold. First, the SCC has so far suggested that the rule of law cannot be used, on its own, to invalidate legislation.[27]<\/a> This is in line with the position defended by respected constitutional scholars. Peter Hogg and Warren Newman argue that the rule of law can be used to support the interpretation of constitutional provisions, but it should not be relied upon as the sole basis to strike down legislation.[28]<\/a> The rule of law must be reconciled with the principles of constitutionalism and democracy. If a legal rule is consistent with the text of the Constitution (constitutionalism), and has been adopted under the proper procedure by the legislative branch (democracy), judges should enforce it, whether or not they agree with the underlying policy. This is coherent with the very thin conception of the rule of law adopted by the SCC. Under this view, the remedy against legislation that is perceived as unjust or unfair does not lie in the unwritten principles, but in the text of the Constitution and the ballot box.[29]<\/a><\/p>\n This approach has prevailed in several important cases, including cases dealing with the constitutionality of Cabinet immunity. In Singh<\/em> v.<\/em> Canada<\/em> (A.G.)<\/em>, the Federal Court of Appeal dismissed the claim that section\u00a039 of the CEA<\/em> violates the rule of law, finding it to be consistent with the SCC\u2019s three elements: it establishes a legal order for the protection of Cabinet confidences; it applies equally to the government and legal subjects; and it allows the government to protect Cabinet confidences in litigation. Whether section\u00a039 is good or bad policy is irrelevant, the Federal Court of Appeal said, for \u201cthe rule of law does not preclude a special law with a special result dealing with a special class of documents which, for long standing reasons based on constitutional principles such as responsible government, have been treated differently.\u201d[30]<\/a> The SCC later quoted this passage with approval in Babcock<\/em>.[31]<\/a> While section\u00a039 may be a \u201cdraconian\u201d rule, the SCC added, it is one that Parliament has the power to adopt.[32]<\/a> The SCC has consistently declined to invalidate legislation on the basis that it violates the unwritten rule of law principle, thus suggesting that the rule of law does not have normative force as an independent base to challenge the validity of legislation.[33]<\/a><\/p>\n Second, while the rule of law has not been used, as a standalone principle, to invalidate legislation, it has been relied upon to bolster the interpretation of provisions of the Constitution which, in turn, have been used to invalidate legislation or justify a specific remedy.[34]<\/a> This form of argument has been considered more legitimate because the declaration of invalidity is based on the text of the Constitution. For example, in the Manitoba Language Rights Reference<\/em>, the rule of law was used in two ways: in conjunction with section\u00a023 of the Manitoba Act, 1870<\/em>, to sustain the decision that the unilingual statutes enacted by the legislature since 1890 were invalid, as they had not been enacted in French; and in conjunction with section\u00a052 of the Constitution Act, 1982<\/em>, to suspend the effects of the decision while the statutes were translated and re-enacted, in order to maintain a positive legal order.[35]<\/a> In R. v.<\/em> Nova Scotia Pharmaceutical Society<\/em>, the SCC held, based on the rule of law and section\u00a07 of the Charter<\/em>, that vague and unintelligible legal rules are invalid.[36]<\/a> In the Reference Re Secession of Quebec<\/em>, the rule of law was used to support the conclusion that Quebec could not unilaterally secede from Canada, even after a clear majority vote on a clear question, as this would require an amendment to the Constitution which could not lawfully take place without negotiation with the federal government and the other provinces under Part\u00a0V of the Constitution Act, 1982<\/em>.[37]<\/a> In Trial Lawyers Association of British Columbia v.<\/em> British Columbia (A.G.)<\/em>, the SCC invalidated regulations imposing court hearing fees on the basis that, without proper exemptions, these fees could impede access to justice and violate the core, or inherent, jurisdiction of superior courts under section\u00a096 of the Constitution Act, 1867<\/em>.[38]<\/a> In Trial Lawyers Association<\/em>, the rule of law served to bolster the nexus between the core jurisdiction of superior courts and access to justice. In light of the foregoing, the rule of law may thus have some normative force in connection with the text of the Constitution.<\/p>\n Third, it may be open to the courts to conclude that a legal rule is, at the same time, inconsistent with the unwritten rule of law principle and constitutionally valid. This type of situation could occur where a legal rule violates a requirement of the rule of law without violating the text of the Constitution. The obvious example is Imperial Tobacco<\/em>. There, had the SCC incorporated the principles of formal legality as part of the unwritten rule of law principle in its reasons, it would have concluded that the impugned legislation was inconsistent with the rule of law because the measures were not general and prospective. Yet, as the written Constitution does not require that rules be general and prospective in civil matters, the legislation would still have been constitutionally valid. In adopting this midway position, the SCC would have upheld its duty to protect the rule of law in a way that is respectful of its role in the Canadian legal order.[39]<\/a> This would have signaled to Parliament and the government that there was something wrong with the legislation and opened the way for corrective measures through an institutional dialogue.[40]<\/a> The government would still have been able to apply the legislation, but would have suffered political costs for doing so. Perhaps, in the future, the SCC may be persuaded to use the rule of law in this manner.<\/p>\n To sum up, the SCC has so far adopted a very thin, not to say weak, conception of the unwritten rule of law principle, which embraces three elements: there must be a legal order; within that legal order, legal rules must apply equally to the state and legal subjects; and state action must be authorized by legal rules. The SCC has suggested the rule of law could not be used, as a standalone principle, to challenge the validity of democratically-enacted legal rules. To be legitimate, judicial review of legislation should be grounded on the text of the Constitution\u2014the big-C Constitution. Thus, to challenge the validity of legislation, the rule of law should be used in conjunction with specific provisions of the Constitution. This approach is consistent with the SCC\u2019s positivist conception of the rule of law and its neglect of small-c constitutionalism. The problem with this approach is the following: because the SCC\u2019s current conception of the rule of law is very thin, its normative force is limited. At present, the rule of law cannot breathe much life into the text of the Constitution. While it does have some normative potential, that potential is locked. Hence, we are in a cul-de-sac<\/em>: the rule of law can be used to bolster the interpretation of the text of the Constitution, but the SCC\u2019s conception of the rule of law is too thin to play that role in a meaningful manner. To unlock the full normative potential of the rule of law principle, I will turn to an alternative conception of the rule of law, the theory of law as justification, which is implicit is the Canadian legal order.<\/p>\n The theory of law as justification offers a compelling alternative conception of the rule of law, in contrast to the \u201crule by law\u201d conception, as it fosters the establishment of a \u201cculture of justification\u201d in legal orders. The first to coin this term was South African scholar Etienne Mureinik. In 1994, in an influential article, he presented the \u201cculture of justification\u201d as an ideal for the new South African Constitution, as opposed to the \u201cculture of authority\u201d that prevailed during Apartheid. For Mureinik, a culture of justification is \u201ca culture in which every exercise of power is expected to be justified; in which the leadership given by government rests on the cogency of the case offered in defence of its decisions, not the fear inspired by the force at its command.\u201d[41]<\/a> This simple idea, that is, the idea that state actors must provide substantive justification for all their actions, was subsequently developed into an elaborate rule of law theory by David Dyzenhaus, as part of what he calls the \u201crule-of-law project.\u201d[42]<\/a> The aim of this project is to ensure that state power is exercised within the limits of the rule of law by requiring state actors to embrace a culture of justification. The presence of a culture of justification in a legal order requires three key elements: the recognition of fundamental legal principles; the judicial review of state action; and the imposition of an onus of justification on the state.[43]<\/a><\/p>\n The first element of a culture of justification is that judges must take the view that the rule of law has content, that is, it is made of fundamental legal principles. These principles can be enshrined in a written or unwritten constitution. Law as justification promotes a thicker conception of the rule of law, as compared to rule by law. The eight principles of formal legality, set out by Lon Fuller, are at the centre of the rule-of-law project. The first seven principles are directed primarily to the legislative branch because they pertain to the inner qualities that legal rules must possess to count as law. Legal rules must be general, public, prospective, clear, coherent, possible to comply with, and relatively stable over time, so that legal subjects can be guided by them.[44]<\/a> A rule that fails to meet one of these principles entirely, or several of them substantially, cannot claim legal legitimacy.[45]<\/a> The eighth principle, congruence, is directed primarily to the executive branch: it requires state actors to act in a manner consistent with legal rules.[46]<\/a> Compliance with these principles infuses the law with an \u201cinner morality\u201d.[47]<\/a> Law as justification focuses on \u201ca kind of justice located within the law\u201d in the design and administration of the law.[48]<\/a><\/p>\n Law as justification goes beyond formal legality as it is \u201cboth liberal and democratic in inspiration.\u201d[49]<\/a> Thus, it seeks to reconcile the need to place the development of legal rules in the hands of the elected representatives of the people\u2014the value of participation\u2014with the need to ensure that rules do not unjustifiably violate the rights of individuals\u2014the value of accountability. Dyzenhaus accepts that legal legitimacy is incomplete without democratic legitimacy.[50]<\/a> Furthermore, he views legal subjects as \u201cbearer[s] of human rights\u201d,[51]<\/a> who must be treated with equality[52]<\/a> and dignity,[53]<\/a> and whose liberty must be respected.[54]<\/a> Beyond these fundamental attributes and the requirements of procedural fairness, Dyzenhaus has resisted the urge to define more precisely the substantive content of the rule of law.[55]<\/a> This may be explained by the fact that the focus of law as justification is on the connection between process and substance; the intuition is that a good decision-making process should lead to a substantively good decision.[56]<\/a> That said, a culture of justification is more likely to prosper in a legal order that values democracy and human rights.<\/p>\n The second element of a culture of justification is that judges must be empowered to review legislative and executive actions to ensure that they comply with the aforementioned fundamental legal principles. This implies the existence of a separation of powers between the legislative, judicial, and executive branches, under which independent and impartial judges have the ultimate authority to interpret and apply the law in cases of controversy. Although the rule-of-law project requires the cooperation of the three branches of the state in the maintenance of the rule of law, judges have a special role in this regard.[57]<\/a> Because of their obligation of fidelity to the law, judges must hold the legislative and executive branches to account when they fail to uphold the rule-of-law project.[58]<\/a> There are many ways in which this may happen. Lawmakers may enact legal rules limiting access to the courts, depriving litigants of procedural fairness, or give state actors a broad and unreviewable discretion on a given matter, which could then be abused. Privative clauses are the archetype of such legal rules.[59]<\/a> The danger with privative clauses is that they create \u201clegal black holes\u201d,[60]<\/a> that is, zones which are not controlled by the rule of law.[61]<\/a> These legal black holes are inconsistent with a culture of justification because they insulate state action from judicial review.<\/p>\n Judicial review is also essential to the fulfilment of Fuller\u2019s congruence principle.[62]<\/a> The essential purpose of judicial review is to ensure that state actors act in a manner that is consistent with legal rules. There could be no rule of law, even on a bare rule by law understanding of that concept, if the executive branch was free to ignore the legal rules enacted by the legislative branch. While the first seven principles of legality enable the conversion of public policy objectives into legal rules, the last one enables the conversion of legal rules into what Fuller describes as \u201cclaims of right or accusations of fault.\u201d[63]<\/a> It is the function of independent and impartial judges to review executive action for congruence, in line with the rules of procedural fairness. In public law, \u201cadjudication\u201d is one of the main devices under which legal subjects can hold the state accountable. It is a \u201cform of social ordering,\u201d which enables legal subjects to participate in decisions that affect them, through the presentation of \u201cproofs and reasoned arguments\u201d that are \u201csupported by a principle.\u201d[64]<\/a> When lawmakers shield executive action from judicial review, that is, when they create a legal black hole, they prevent the application of the congruence principle. This is inconsistent with a culture of justification as it ensures \u201cthat there is no law with which official action has to be congruent.\u201d[65]<\/a> In doing so, lawmakers fail to address legal subjects with the dignity they deserve as bearers of human rights.<\/p>\n The third element of a culture of justification is that the legislative and executive branches must bear the onus of justifying their actions by reference to the fundamental legal principles. The onus of justification is triggered when state action affects individual rights, privileges, or interests.[66]<\/a> In such cases, legal subjects will inquire: \u201cBut how can that be law for me?\u201d[67]<\/a> In answering the question, the state ought to satisfy what Bernard Williams describes as the \u201cBasic Legitimation Demand\u201d; to do so, the state must \u201coffer a justification of its power to<\/em> each subject<\/em>.\u201d[68]<\/a> In other words, the state must provide reasons for its action. State actors must be transparent and identify the source of the legal power they are asserting, as well as the way that power has been interpreted and applied, in view of the legal subject\u2019s specific circumstances. Only in light of the reasons provided by state actors to justify their actions can legal subjects, and judges, determine whether these actions are consistent with fundamental legal principles. By discharging their \u201cduty to give reasons\u201d, state actors enable legal subjects to know that their dignity and equal status under the law have been respected, and that the actions were taken in good faith, free of bias, based on the appropriate legal considerations.[69]<\/a><\/p>\n Yet, the duty to give reasons makes sense only if the reasons provided do in fact justify the action. Hence, it is not enough that reasons be provided; they must also be reviewed by a judge to assess whether they show, or are capable of showing, that the action is justifiable in view of the fundamental legal principles. \u201cJustifiable\u201d must not be confused with \u201cjustified.\u201d When a judge inquires whether a decision is \u201cjustified\u201d, he or she is asking whether he or she would have made the same decision, which constitutes the correctness standard in administrative law. When a judge inquires whether a decision is \u201cjustifiable\u201d, he or she is asking whether the decision is defensible in light of the appropriate legal considerations, which constitutes the reasonableness standard in administrative law.[70]<\/a> The reasonableness standard requires that the decision be rational and proportional.[71]<\/a> By demanding that state action be \u201cjustifiable\u201d, as opposed to \u201cjustified\u201d, law as justification recognizes that state actors have a legitimate role in the interpretation of the law. This implies that judges should not quash an executive decision just because they would have reached a different conclusion, provided that the executive decision falls within a range of defensible outcomes.[72]<\/a> Dyzenhaus uses the concept of \u201cdeference as respect\u201d to communicate the idea that judges should defer to executive interpretation of the law, within expertise, if the reasons provided to support that interpretation are \u201cgood enough\u201d.[73]<\/a><\/p>\n Now that the three elements of the theory of law as justification have been outlined, I will demonstrate that the theory is implicit in the Canadian legal order, even though the courts have not yet recognized it. I will then argue that the theory of law as justification also underpins the approach taken by the courts under the common law to determine the validity of public interest immunity (PII) claims, also known as claims of Crown privilege, at the provincial level in Canada.[74]<\/a> Finally, I will identify the normative conditions that a statutory regime of PII, such as section\u00a039 of the CEA<\/em>, must fulfil to comply with the theory of law as justification.<\/p>\n The three elements of the theory of law as justification are embedded in the Canadian legal order. First, the Canadian legal order contains written and unwritten fundamental legal principles. The written Constitution establishes democratic governance in the form of an elected House of Commons[75]<\/a> and protects a broad range of human rights including equality, dignity, and liberty.[76]<\/a> Moreover, the Constitution contains unwritten principles, such as the rule of law, democracy, and respect for minorities, which are broad expressions of the nature of the Canadian legal order and can be used to fill in the gaps in the written Constitution.[77]<\/a> Similarly, in administrative law, the SCC has declared that executive discretion should be exercised \u201cin accordance with the boundaries imposed in the statute, the principles of the rule of law, the principles of administrative law, the fundamental values of Canadian society, and the principles of the Charter<\/em>.\u201d[78]<\/a> Democracy and human rights are therefore important features of both law as justification and the Canadian legal order. Lastly, important principles of formal legality, such as the principles of generality,[79]<\/a> clarity,[80]<\/a> publicity,[81]<\/a> prospectivity,[82]<\/a> and congruence[83]<\/a> have a clear textual basis in the Constitution and ordinary statutes.<\/p>\n Second, the Canadian legal order establishes a separation of powers which affirms the power of the courts to review the validity of legislative and executive actions and strike down invalid actions.[84]<\/a> While there may be no genuine separation of powers between the legislative and executive branches, given that ministers are members of both branches, the judicial branch is clearly segregated from the other two. The institutional independence of the courts stems from the unwritten principle of judicial independence as well as paragraph\u00a011(d) of the Charter<\/em> and section\u00a096 of the Constitution Act, 1867<\/em>.[85]<\/a> Section\u00a096, especially, constitutionalizes the core, or inherent, jurisdiction and powers of provincial superior courts, and protects their authority to review executive action for jurisdictional errors.[86]<\/a> As for the courts\u2019 power to invalidate legislation, this stems from section\u00a052 of the Constitution Act, 1982<\/em>, as well as the principle of constitutionalism.[87]<\/a> Rules of procedural fairness under the common law,[88]<\/a> the Bill of Rights<\/em>,[89]<\/a> and the Charter<\/em>[90]<\/a> typically impose on public decision-makers a duty to act fairly in coming to decisions that affect individual interests. The Canadian legal order is thus designed to ensure that fundamental legal principles are recognized and enforced in a manner consistent with the congruence principle and a culture of justification.<\/p>\n Third, the Canadian legal order imposes on the legislative and executive branches the onus of justifying their actions when they affect legally protected individual interests. As a matter of constitutional law, the government bears the onus of justifying any legal rule that limits a fundamental right or freedom under section 1 of the Charter<\/em>. Section\u00a01 involves an inquiry into the proportionality of a law.[91]<\/a> The government also bears the onus of justifying, pursuant to the principles of fundamental justice, any legal rule that violates the right to life, liberty and security of the person protected under section\u00a07 of the Charter<\/em>.[92]<\/a> A similar onus of justification exists as a matter of administrative law. The rules of procedural fairness impose on the government a legal duty to provide reasons, especially when it makes a decision which has \u201cimportant significance\u201d for an individual.[93]<\/a> As shown by Roncarelli<\/em> v.<\/em> Duplessis<\/em> and Baker<\/em> v. Canada (Minister of Citizenship and Immigration)<\/em>, awareness of the reasons supporting executive actions is key to a successful judicial review application. Courts examine reasons to determine whether or not the executive decision is reasonable, a standard of review which focuses on the \u201cexistence of justification, transparency and intelligibility\u201d in the decision-making process.[94]<\/a> The onus of justification, and the concept of \u201cdeference as respect\u201d, are accordingly part of the Canadian legal order.[95]<\/a><\/p>\n The requirements of \u201cjudicial review\u201d and \u201conus of justification\u201d are essential to assessing whether the various common law approaches to PII in Westminster jurisdictions comply with the theory of law as justification.[96]<\/a> For almost three decades, as a result of the House of Lords\u2019 1942 decision in Duncan<\/em> v.<\/em> Cammell, Laird and Co. Ltd.<\/em>, the common law deprived judges of the power to assess the substantive validity of PII claims made in the proper form by the responsible minister.[97]<\/a> This situation led to instances of abuse of power, as ministers claimed PII for tactical reasons in cases where the government was a party to litigation, in breach of the fundamental rules of procedural fairness.[98]<\/a> Duncan<\/em> was inconsistent with the congruence principle and the second element of law as justification as it prevented meaningful judicial review of state action. This flaw was corrected in Conway<\/em> v.<\/em> Rimmer<\/em>, when the House of Lords overruled Duncan<\/em> and affirmed the power of the courts to: inspect the documents subject to a PII claim; weigh and balance the competing aspects of the public interest; and order their production when appropriate.[99]<\/a> Since Conway<\/em>, the common law has enabled judges to assess the substantive validity of PII claims, in accordance with the second element of law as justification\u2014judicial review.<\/p>\n This development did not, however, have the effect of making the common law of PII consistent with the third element of law as justification. Courts in the United Kingdom and Australia have taken the position that judges should not inspect Cabinet documents that fall within the discovery standard unless the litigant persuades them that an inspection is necessary.[100]<\/a> However, it is almost impossible for litigants to meet this burden as they are not privy to the documents\u2019 contents. Cabinet immunity claims therefore remain, to some extent, unreviewable in these jurisdictions. This is problematic from a rule of law perspective, especially when it is alleged that the government has acted illegally. The \u201cpublic interest … in the maintenance of legality,\u201d cannot be vindicated if judges refuse to inspect relevant documents subject to a Cabinet immunity claim.[101]<\/a> In this context, judges cannot determine whether executive action is truly congruent with legal rules. For this reason, courts in Canada, at the provincial level, inspired by the position taken in New Zealand, have reversed the onus: the default position is that judges should inspect Cabinet documents that fall within the discovery standard unless the government persuades them that it is not necessary.[102]<\/a> Thus, Canada\u2019s and New Zealand\u2019s approach under the common law also complies with the third element of law as justification\u2014the onus of justification.<\/p>\n In this context, we can identify two normative conditions that a statutory PII regime, such as the one set out in section\u00a039 of the CEA<\/em>, must follow to comply with the theory of law as justification. These conditions are triggered each time an executive decision to exclude information has the effect of depriving litigants of evidence relevant to the fair disposition of their case. The first condition combines the fundamental legal principles with the onus of justification, while the second deals with the requirement of judicial review.<\/p>\n To sum up, the theory of law as justification provides a compelling alternative conception of the rule of law as compared to the SCC\u2019s rule by law conception. Because it is already embedded in the Canadian legal order, law as justification can legitimately be relied upon by the courts to guide their interpretation of the Constitution. What does it imply for section\u00a039 of the CEA<\/em>? In a culture of justification, if the congruence principle and the integrity of the adjudicative process are to be maintained, the ultimate decision to deprive litigants of relevant evidence in litigation must be made pursuant to a fair process, by unbiased judges, with the power to review both the justification and the information. Yet, at the same time, under a culture of justification, judges must defer to an executive decision to shield Cabinet confidences in litigation if it is reasonable, in accordance with the idea of \u201cdeference as respect\u201d.<\/p>\n Is the regime of Cabinet secrecy set forth in section\u00a039 of the CEA<\/em> consistent with the theory of law as justification and the provisions of the Constitution? Part\u00a02 will answer this question. It is divided into two subparts. In the first subpart, I will inquire whether the statutory decision-making process is procedurally fair. I will focus on two requirements of procedural fairness, namely, the litigant\u2019s right to: have his or her case determined by an independent and impartial decision-maker; and have access to the reasons underpinning the decision. These requirements, essential to law as justification, stem from the common law, paragraph\u00a02(e) of the Bill of Rights<\/em>, as well as section\u00a07 and paragraph 11(d) of the Charter<\/em>. In the second subpart, I will inquire whether section\u00a039 unduly limits the authority of provincial superior courts to: control the admissibility of evidence in litigation; and review the legality of executive action. Judicial review, a key element of law as justification, is protected under section\u00a096 of the Constitution Act, 1867<\/em>. I will demonstrate that section\u00a039 is procedurally unfair and encroaches upon the core, or inherent, jurisdiction and powers of superior courts. It is thus inconsistent with the rule of law as a culture of justification and, because it violates provisions of the Constitution, it is also unconstitutional.<\/p>\n In civil cases against the federal government, litigants have challenged\u2014unsuccessfully\u2014the validity of section\u00a039 of the CEA<\/em>, and the provisions that preceded it,[103]<\/a> on the basis that it violates the \u201cright to a fair hearing\u201d guaranteed under paragraph\u00a02(e) of the Bill of Rights<\/em>.[104]<\/a> Paragraph\u00a02(e) provides that no law of Canada must be construed or applied so as to \u201cdeprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations.\u201d The SCC has held that paragraph\u00a02(e) requires that decision-makers who determine individual rights and obligations \u201cact fairly, in good faith, without bias and in a judicial temper, and must give to [the litigant] the opportunity adequately to state his case.\u201d[105]<\/a> In their fight against section\u00a039, litigants have focused on the last element of that statement: the right to adequately state one\u2019s case, which is part of the natural justice principle audi alteram partem<\/em>\u2014\u201chear the other side\u201d, also known as the \u201cright to be heard\u201d. The gist of their claims has been that section\u00a039 deprived them of access to evidence that was prima facie relevant to the fair disposition of their cases, thus preventing them from adequately stating their cases. Courts have rejected these claims on the basis that the exclusion of relevant evidence because of a privilege or immunity does not violate the \u201cright to be heard\u201d. The rationale underlying the courts\u2019 position was summarized as follows by Justice Iacobucci, then of the Federal Court of Appeal, in Central Cartage<\/em>:<\/p>\n Many questions of privilege such as solicitor-client, priest-penitent, or rules on hearsay evidence can operate to cut down on the ability to state one\u2019s case by denying admissibility into evidence even though relevance may be established. The issue of Crown privilege attaching to Cabinet confidences is firmly established as one of these exceptions and I believe it has not been ousted by the wording of paragraph\u00a02(e) of the Canadian Bill of Rights<\/em>.[106]<\/a><\/p>\n While the litigants were on to something, the thrust of their argument was misplaced. What makes the decision-making process set out under section\u00a039 procedurally unfair is not the fact that it may lead to the exclusion of relevant evidence for public policy reasons; rather, it is the fact that the decision to exclude the evidence is made by someone who is seemingly biased, namely, \u201ca minister of the Crown or the Clerk of the Privy Council.\u201d Subsection\u00a039(1) gives members of the executive branch a very broad discretion to decide whether relevant evidence should be excluded in proceedings where the government is a party, in breach of the natural justice principle nemo judex in sua causa<\/em>\u2014\u201cno one may be judge in his own cause\u201d, also known as the \u201crule against bias\u201d. This attribute differentiates section\u00a039 from the other existing privileges and immunities. The minister or the Clerk is not just \u201cobjecting\u201d to the production of information, he or she is finally and conclusively \u201cdeciding\u201d the matter. No other privilege or immunity enables a litigating party to decide what evidence should be excluded from the proceedings. This is normally a matter for the judge to decide. Hence, the problem is not so much that section\u00a039 prevents a party from adequately stating his or her case, the problem is that the individual who has the power to exclude the evidence is not \u201cwithout bias\u201d. I will flesh out this argument by answering three questions: What are the requirements of the rule against bias? Why does section\u00a039 violate that rule? What are the consequences of the violation?<\/p>\n The rule against bias provides that decision-makers and decision-making processes must not grant undue preferential treatment to one party over another or be driven by preconceived notions. It seeks to maintain the fairness of the process for litigants and the confidence of the public in the administration of justice.[107]<\/a> Thus, a mere perception of bias, if that perception is reasonable, may nullify a decision: \u201c[It is] of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.\u201d[108]<\/a> In civil cases, the rule against bias applies to any decision-maker who must decide matters affecting individual rights. In such cases, a litigant is legally entitled to an independent and impartial decision-maker. The required degree of independence and impartiality varies depending on whether the decision-maker performs judicial or quasi-judicial functions, which will require a higher degree, or administrative functions, which will require a lower degree.<\/p>\n The notion of \u201cimpartiality\u201d refers to the decision-maker\u2019s state of mind in relation to the issues and the parties in a case.[109]<\/a> An impartial decision-maker is one that can decide with an open mind and who does not have an interest with, or connection to, the matter in dispute. A decision-maker will be disqualified if there is actual evidence of bias or if the circumstances give rise to a \u201creasonable apprehension of bias\u201d. In the latter case, the question to ask is:<\/p>\n [W]hat would an informed person, viewing the matter realistically and practically\u2014and having thought the matter through\u2014conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.[110]<\/sup><\/a><\/p>\n A reasonable apprehension of bias can be individual or institutional. An individual bias arises where the decision-maker has: a pecuniary interest in the outcome of the case; a relationship with one of the parties; a prior involvement in the case; or an attitudinal predisposition toward a specific outcome. An institutional bias arises where the structure or internal practices of a decision-making body give rise to a \u201creasonable apprehension of bias in the mind of a fully informed person in a substantial<\/em> number of cases.\u201d[111]<\/a><\/p>\n The notion of \u201cindependence\u201d is connected to the notion of \u201cimpartiality\u201d in the sense that independence strengthens the public\u2019s perception of impartiality.[112]<\/a> The essence of judicial independence is<\/p>\n the complete liberty of individual judges to hear and decide the cases that come before them: no outsider\u2014be it government, pressure group, individual or even another judge\u2014should interfere in fact, or attempt to interfere, with the way in which a judge conducts his or her case and makes his or her decision.\u201d[113]<\/sup><\/a><\/p>\n Judicial independence therefore connotes a status of relationship to other branches, especially to the executive, which rests on objective conditions or guarantees like security of tenure, financial security, and administrative control.[114]<\/a> To protect the courts\u2019 independence from improper executive interference, judges can only be removed following a judicial inquiry at which they are given a full opportunity to be heard,[115]<\/a> their salary and pension are fixed by law,[116]<\/a> and they have control over how their affairs are managed.[117]<\/a> The SCC has ruled that these conditions apply, to some extent, to administrative bodies, even if they are part of the executive branch.[118]<\/a> That position begs the question of how can administrative bodies be, at the same time, a part of, and independent from, the executive branch?[119]<\/a> What matters here is not so much that these bodies be independent from the executive branch, but rather that they be independent from the parties to the litigation.[120]<\/a> As such, a reasonable apprehension of bias arises where one of the parties has control over the tenure, remuneration or modus operandi of the decision-maker.[121]<\/a><\/p>\n Three conditions must be met for the rule against bias to be engaged in the context of section\u00a039 of the CEA<\/em>. First, the litigation must involve a litigant and the government. The central concern is that one of the parties to the litigation, the government, may improperly exclude relevant information. This concern is less acute in litigation where the government is not a party. Second, the information excluded must be \u201crelevant\u201d to the fair disposition of the case. It is the exclusion of relevant information that would undermine the litigant\u2019s right to state his or her case and lead to a denial of justice. In contrast, the exclusion of irrelevant information would have no impact on the fairness of the proceedings. However, given that no one can inspect the information excluded by the government, it is reasonable to assume that any information that falls within the standard of discovery is prima facie relevant to the fair disposition of the case. Third, the power to exclude relevant information in litigation, for public policy reasons, must be judicial in nature. Because it involves the interpretation and application of legal standards,[122]<\/a> in a manner that is meant to be final and conclusive,[123]<\/a> and which will affect the litigant\u2019s rights, the power to exclude relevant documents is judicial in nature whether it is exercised by a judge, a minister, or a senior public servant. Hence, to prevent the existence of a reasonable apprehension of bias, the decision-maker must have a high level of independence and impartiality.<\/p>\n Would the exclusion of relevant Cabinet confidences in litigation by a minister or the Clerk give rise to a reasonable apprehension of bias? Is the decision-maker sufficiently independent and impartial to perform this function in a fair manner?<\/p>\n With respect to the question of independence, neither the minister nor the Clerk are independent from the executive branch as such. But this is not the issue: the issue is whether a party to the litigation has direct or indirect control over their tenure, remuneration, or modus operandi.[124]<\/a> The answer is \u201cyes\u201d. Ministers and Clerks are appointed under the prime minister\u2019s recommendation and hold their position at pleasure, meaning that they can be removed at any time, for any reason. Let us focus on the Clerk who has the primary responsibility for the application of section\u00a039. The Clerk performs three functions: deputy minister to the prime minister; secretary to the Cabinet; and head of the Public Service of Canada. Given his or her unique position in the public service, the Clerk must serve the prime minister and Cabinet with loyalty.[125]<\/a> The Clerk\u2019s main role is to ensure the efficiency of the collective decision-making process and to assist his or her political masters to develop and implement their policy goals. At the same time, the Clerk must decide issues related to the application of section\u00a039. When deciding if Cabinet confidences should be disclosed in litigation, the Clerk is acting for the executive branch and is accountable to the prime minister and Cabinet for his or her decisions.<\/p>\n The disclosure of Cabinet confidences is naturally a question of concern for the prime minister and Cabinet, especially if the information pertains to their own ministry, as it could have major political consequences. It could weaken the candour and the efficiency of Cabinet deliberations as well as ministerial solidarity. It could even jeopardize the ministry\u2019s capacity to maintain the confidence of the House of Commons and electorate.[126]<\/a> These are the kind of negative effects that Parliament tried to prevent when it made Cabinet immunity almost absolute. The disclosure of Cabinet confidences could also have major legal consequences as the information could be used to: attack the legality of government policies;[127]<\/a> establish governmental liability for civil wrongs;[128]<\/a> or uncover the mismanagement of public funds.[129]<\/a> There are strong incentives within the executive branch to keep Cabinet documents secret. It would be unprecedented for anyone to allow the disclosure of an official Cabinet document without the prime minister\u2019s consent. This could explain why Cabinet documents are typically not voluntarily disclosed in litigation before the expiry of the 20-year moratorium. Hence, a reasonable apprehension of bias arises from the prime minister\u2019s power over the decision-maker\u2019s tenure and his or her \u201cpolitical self-interest\u201d in maintaining Cabinet secrecy.[130]<\/a> An informed person would likely conclude that the minister or the Clerk cannot decide the matter fairly.<\/p>\n With respect to the question of impartiality, the process set out under section\u00a039 of the CEA<\/em> may give rise to a reasonable apprehension of individual and institutional bias. A perception of individual bias may arise from the minister\u2019s or the Clerk\u2019s prior involvement in the government decision under scrutiny. Ministers and Clerks should not make a final and conclusive decision on the disclosure of Cabinet confidences in litigation if they have been involved in making the impugned decision.<\/p>\n Assume that the Minister of Environment and the Clerk have been involved in the collective decision-making process leading to the decision to approve the construction of a pipeline, despite significant adverse environmental effects. Assume that the legality of the decision is now being challenged by First Nations bands on the basis that their rights were not properly considered. Would an informed person likely conclude that the minister or the Clerk has an interest in excluding Cabinet confidences that may be used to nullify the decision? In these circumstances, a reasonable apprehension of bias would arise from the direct connection between the decision-maker and the impugned decision.<\/p>\n The same reasoning would apply in cases where allegations of breach of contract or fiduciary duties, or unconscionable conduct, are made against the government. If the minister or the Clerk has been involved in making the impugned decision, he or she cannot finally and conclusively decide whether relevant evidence should be excluded in related proceedings, without giving rise to a reasonable apprehension of bias.<\/p>\n On a final note, a perception of institutional bias may arise from the role played by Counsel to the Clerk in the decision-making process under section\u00a039 of the CEA<\/em>. In relation to any major litigation against the government, Counsel is called to perform two seemingly incompatible functions: on the one hand, provide legal advice to, and seek instructions from, the Clerk, the prime minister, and the Cabinet, on which position should be taken in the litigation and, on the other hand, provide legal advice to the Clerk on whether evidence that is relevant to the fair disposition of the case should be excluded. These functions are incompatible because the government\u2019s ability to successfully defend against a lawsuit may be undermined by the disclosure of Cabinet confidences. The problem is that one person is involved in both developing the government\u2019s litigation strategy and deciding whether evidence that could weaken that strategy should be excluded. Lawyers involved in the litigation process in a specific case should not participate in the adjudicative process, as it would give rise to a \u201creasonable apprehension of bias [in the mind of an informed person] in a substantial number of cases.\u201d[131]<\/a> When Counsel advises the Clerk to issue a certificate on the basis of Cabinet immunity, he or she is in effect participating in the adjudicative process because the certificate will deprive the litigant and the judge of evidence that may have been relevant to the fair disposition of the case. In doing so, Counsel is effectively acting both as judge and party in the same cause.<\/p>\n The decision-making process established by Parliament under section\u00a039 of the CEA<\/em> is thus inconsistent with the rule against bias, which is part of both the common law and the theory of law as justification. The wording of section\u00a039 suggests that Parliament wanted to overrule the common law by enabling the minister or the Clerk to exclude relevant Cabinet confidences despite any reasonable apprehension of bias. Absent constitutional constraints, the courts would have to enforce Parliament\u2019s intention.[132]<\/a> Yet, at the federal level, the rule against bias has been given a quasi-constitutional status pursuant to paragraph\u00a02(e) of the Bill of Rights<\/em>.[133]<\/a> As such, the rule against bias should not, in the absence of an express declaration, be displaced by an ordinary statute like the CEA<\/em>. In the end, the fact that the prime minister controls the appointment of ministers and Clerks, and could exert an influence over the application of Cabinet immunity, leads to the conclusion that section\u00a039 does not meet the requirement of independence.[134]<\/a> As previously discussed, there are also concerns with respect to individual and institutional bias in the decision-making process. Consequently, section\u00a039 should be declared \u201cinoperative\u201d insofar as it violates paragraph\u00a02(e) of the Bill of Rights<\/em>.[135]<\/a><\/p>\n Until now, this article has focused on the question of independence and impartiality in the context of civil cases, but the same reasoning would apply in criminal cases. Where an individual faces true penal consequences, the analysis would focus on section\u00a07 and paragraph 11(d) of the Charter<\/em>.[136]<\/a> In R. v.<\/em> Stinchcombe<\/em>, the SCC held that an accused has a constitutional right to make full answer and defence as per section\u00a07.[137]<\/a> To that end, the principles of fundamental justice, which incorporate the duty of procedural fairness, require that all relevant evidence be provided to the accused.[138]<\/a> In addition, where a dispute arises as to the admissibility of relevant evidence, the accused is constitutionally entitled to have an \u201cindependent and impartial tribunal\u201d decide the matter as per paragraph\u00a011(d). Thus, it is doubtful that the issuance of a final and conclusive certificate under section\u00a039 of the CEA<\/em> in a criminal case would survive Charter<\/em> scrutiny.[139]<\/a> This could explain why the government has so far refrained from relying upon section\u00a039 in this context. In cases in which Cabinet confidences were relevant to the defence of former ministers, the information was voluntarily disclosed to the accused.[140]<\/a> Considering the importance of the interest at stake in criminal cases, a choice must be made between prosecuting the accused and protecting Cabinet confidences. Section 39 should not be used to deprive the accused of relevant evidence given the risk of wrongful conviction.<\/p>\n There is another reason for concern, from a procedural fairness perspective, with the way section\u00a039 of the CEA<\/em> has been interpreted and applied. This concern goes to the heart of the theory of law as justification, as it relates to the reasons given by the decision-maker for excluding relevant information in litigation. The duty to give reasons is now firmly established in the Canadian positive law as an element of the natural justice principle audi alteram partem<\/em>.[141]<\/a> I will argue that, in their current form, the certificates issued by the government to exclude Cabinet confidences are structurally deficient because they fail to address a fundamental issue: Why does the public interest require that the information be excluded in the circumstances of the case? The minister or the Clerk is bound to answer that question before issuing a section\u00a039 certificate, but his or her reasoning is not communicated to the litigant and the judge, as it would be for any other PII claim. To support this argument, I will address the following three questions: What are the requirements of the duty to give reasons? Why are the reasons provided in current section\u00a039 certificates insufficient? What are the consequences of the failure to provide sufficient reasons?<\/p>\n As a rule, under the common law, procedural fairness did not historically require that reasons be provided for administrative decisions. The reluctance to impose a general duty to give reasons stemmed from numerous concerns. Courts considered that it would place an undue burden on administrative decision-makers, thus triggering additional cost and delay, and possibly even inducing a lack of candour from decision-makers.[142]<\/a> Nevertheless, these concerns have been gradually overshadowed by the benefits of recognizing a general duty to give reasons. The provision of reasons fosters transparency and accountability, and bolsters public confidence in the integrity of the decision-making process.[143]<\/a> It also promotes better decisions as it forces decision-makers to address the critical issues in dispute and to carefully articulate their reasoning.[144]<\/a> As a result, the provision of reasons enables affected individuals to assess: whether their submissions and all the appropriate factual and legal considerations have been taken into account; and whether the decision should be challenged by way of statutory appeal or judicial review.[145]<\/a> If and when the decision is challenged, it enables the appeal or reviewing body to assess whether the decision should be sustained or not.[146]<\/a> All in all, the provision of reasons ensures that the affected individual is treated with fairness, dignity, and respect. This explains why the SCC has recognized in Baker<\/em> a duty to give reasons \u201cwhere the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances [such as to facilitate judicial review].\u201d[147]<\/a><\/p>\n To address the traditional concerns regarding the duty to give reasons, and maintain the efficiency of administrative decision-making processes, the SCC has shown flexibility as to how this duty can be performed.[148]<\/a> When the duty to give reasons applies, procedural fairness requires that the decision-maker provide some form of reasons, but these reasons do not necessarily need to be as detailed as those drafted by judges. At minimum, to meet the Basic Legitimation Demand, the reasons must answer the question \u201cWhy?\u201d[149]<\/a> The litigant is entitled to know why the decision-maker has reached a specific conclusion. To answer the Demand, the decision-maker must do more than simply recite the parties\u2019 submissions, summarize the evidence and state a conclusion.[150]<\/a> The decision-maker must address the critical issues in dispute and explain why he or she was persuaded by some arguments and not by others. In doing so, the decision-maker must identify his or her key findings of fact and the evidence upon which they are based.[151]<\/a> In addition, if his or her conclusion is based on the interpretation and application of legal provisions or precedents, the decision-maker is expected to explain his or her legal reasoning.[152]<\/a> In short, he or she must show that there is a \u201clogical connection\u201d between the conclusion and the basis for the conclusion.[153]<\/a> Only in light of the decision-maker\u2019s factual and legal justification will the litigant and the appellate or reviewing body be able to assess whether all the relevant considerations have properly been taken into account. As the SCC held in Dunsmuir<\/em>, the validity of a decision depends in part on the \u201cjustification, transparency and intelligibility\u201d of the reasons articulated to support it.[154]<\/a><\/p>\n Would a government\u2019s decision to protect Cabinet confidences under section\u00a039 of the CEA<\/em> trigger the duty to give reasons? The answer is \u201cyes\u201d. A decision of this nature is bound to have \u201cimportant significance\u201d for the litigant if it deprives him or her of evidence that is relevant to the fair disposition of the case. That is why the litigant should be entitled to understand the rationale behind the decision beyond the obvious fact that information falls within the statutory class of \u201cCabinet confidences\u201d. Plus, while a section\u00a039 certificate is meant to be final and conclusive, and thus is not subject to a \u201cstatutory right of appeal\u201d, it is not immune from judicial review on jurisdictional grounds. However, for such challenge to be meaningful, the litigant and the judge need to have access to the justification supporting the claim.[155]<\/a> The fact that the plain wording of subsection\u00a039(1) imposes on the government the duty to \u201c[certify] in writing that the information constitutes a confidence of the Queen\u2019s Privy Council for Canada\u201d suggests that Parliament itself envisioned that some form of reasons be provided to justify the use of Cabinet immunity. This is consistent with the courts\u2019 longstanding position under the common law.[156]<\/a> Therefore, the issue is not so much whether the government has a duty to give reasons when claiming Cabinet immunity; rather, it is the scope of that duty.<\/p>\n In Babcock<\/em>, the SCC stated that the government\u2014that is, the minister or the Clerk\u2014must answer two questions before issuing a certificate: (1) do the documents contain \u201cCabinet confidences\u201d within the meaning of subsection\u00a039(2) of the CEA<\/em>; \u00a0and (2) should the documents be protected in the circumstances of the case considering the competing aspects of the public interest?[157]<\/a> One would expect the certificate to address both questions. Unfortunately, it does not. The SCC has imposed on the government the duty to give reasons regarding the first but not the second question.[158]<\/a> To show that it has duly addressed the first question, the government must provide a sufficient description of the documents in the certificate. To that end, it must: identify each document\u2019s date, title, author and recipient; and indicate under which paragraph of subsection\u00a039(2) each document falls\u2014memoranda to Cabinet, discussion papers, agenda, minutes, decisions, briefing notes, letters or draft legislation. If the descriptions provided clearly establish that the documents contain Cabinet confidences, the duty to give reasons will be satisfied regarding the first question. Turning to the second question, the SCC stated that the public interest assessment is a \u201cdiscretionary element [that] may be taken as satisfied by the act of certification.\u201d[159]<\/a> This implies that the government is not required to justify why the documents must be protected in the public interest. In fact, certificates issued in the aftermath of Babcock<\/em> do not address this issue.[160]<\/a> This is an important flaw in the manner in which section\u00a039 was interpreted by the SCC: without justification, there is simply no way to know whether the government has properly addressed the second question.<\/p>\n The SCC\u2019s interpretation does not flow from the plain wording of the statutory provision: Parliament has not expressly superseded the relevant common law principles in enacting section\u00a039 of the CEA<\/em>. At most, one could say that the statutory provision is silent on whether reasons must be provided with respect to the public interest assessment. It is thus open to the courts to refer to the common law to fill in the gap in the statutory provision.[161]<\/a> What does the common law say about the issue? Under the common law, to make a successful claim, the government must not only describe the documents in the certificate, but explain why the public interest require that they be excluded.[162]<\/a> It must provide an assessment of the documents\u2019 degree of relevance and degree of injury. The public interest assessment is the critical part of certificates. Under the common law, the debate is seldom about whether the documents contain Cabinet confidences; it is about whether the interest of justice outweighs the interest of good government.[163]<\/a> In assessing the public interest, the government must take into consideration factors such as the documents\u2019 probative value and materiality, on the one hand, and the sensitivity of their contents and the timing of their production, on the other hand. Failure to provide a rational justification would defeat the claim. As the government is already under a duty to perform a public interest assessment under section\u00a039, why should it be exempted from the duty to share its justification with the litigant and the judge?<\/p>\n The common law doctrine of procedural fairness also supports the recognition of a broader duty to give reasons under section\u00a039. Statutory provisions should not lightly be interpreted to displace the common law in this regard.[164]<\/a> Access to the reasons would assure the litigant that the government has considered all the appropriate factors, and adequately weighed and balanced the competing aspects of the public interest. This is imperative not only to ensure that the litigant is treated with respect, but also as a means of bolstering the public confidence in the integrity of the decision-making process. Access to the reasons may bring to light bona fide or mala fide errors that may have been made during the public interest assessment. Knowledge of these errors would enable the litigant to exercise his or her constitutional right to judicially challenge the decision. Without this knowledge, the litigant would be unable to do so in a meaningful way, for he or she would not know whether the decision is reasonable and within jurisdiction. His or her ability to participate in the review process by making submissions to the court would be impeded. Moreover, without this knowledge, the reviewing court would be unable to assess whether the government\u2019s decision to exclude relevant Cabinet confidences can be justified. Courts should thus rely on the common law to broaden the duty to give reasons as part of section\u00a039 to include the public interest assessment. In Babcock<\/em>, the SCC took a first step by \u201creading in\u201d the public interest assessment in section\u00a039, although it was not explicitly required by the plain wording of the provision. Courts should now compel the government to disclose its public interest assessment in certificates, as a condition of validity of Cabinet immunity claims, considering that this\u00a0information can be provided without revealing any legitimate Cabinet confidence.[165]<\/a> This approach can be implemented by way of statutory interpretation without any legislative modification.<\/p>\n What are the consequences of the government\u2019s failure to communicate its public interest assessment to the litigant and the judge? Beyond violating a key requirement of the theory of law as justification, the government\u2019s failure would invalidate the certificate, and the Cabinet immunity claim, whether the failure is seen as a procedural or substantive defect. The procedural question\u2014subject to the correctness standard\u2014is whether the government has given reasons to sustain the decision. In contrast, the substantive question\u2014subject to the reasonableness standard\u2014is whether the government\u2019s reasons are adequate to sustain the decision. The government\u2019s failure to communicate its public interest assessment would likely be viewed as a substantive rather than a procedural defect.[166]<\/a> If the court considers that the issuance of a certificate fulfils the procedural requirement to give reasons, it would turn its mind to the issue of whether the reasons provided in the certificate are adequate.[167]<\/a> However, as the certificate would not contain the government\u2019s public interest assessment, the court would be unable to assess the reasonableness of the decision to exclude relevant Cabinet confidences. This deficiency would stem from the government\u2019s decision not to provide the information. In this context, the court would be powerless to palliate the lack of reasons as judges sometimes do.[168]<\/a> The court would not be able to \u201csupplement\u201d the reasons provided in the certificate as it could not inspect documents subject to section\u00a039 and conduct its own public interest assessment. As such, the court would have no other option than to declare the certificate invalid and remit the matter to the government, so that a minister or the Clerk could issue a new certificate, containing his or her public interest assessment, or abandon the claim.[169]<\/a><\/p>\n To sum up, in this section, I have developed arguments supporting the position that the way section\u00a039 has been designed, interpreted, and applied is procedurally unfair and inconsistent with the theory of law as justification. First, I have argued that the decision-making process gives rise to a reasonable apprehension of bias, as the minister and Clerk do not have the independence and impartiality needed to fairly adjudicate Cabinet immunity claims in cases involving the government. Second, I have argued that the courts are not able to assess the reasonableness of certificates because the minister and Clerk do not provide reasons explaining why the public interest requires that relevant Cabinet confidences be excluded in the circumstances of the case. These rule of law problems pertain to the identity of the decision-maker and his or her relationship with the prime minister, and the way the decision-maker exercises his or her statutory discretion. I will now turn to another fundamental flaw of section\u00a039 relating to the separation of powers between the executive and the judicial branches of the state.<\/p>\n It is often said that there \u201cis no general \u2018separation of powers\u2019 in the Constitution Act, 1867,\u201d in the sense that it \u201cdoes not separate the legislative, executive and judicial functions and insist that each branch of government exercise only \u2018its own\u2019 function.\u201d[170]<\/a> This assertion is based on two considerations. First, in a system of responsible government, the executive branch is responsible to the legislative branch, and such a system is often described as the \u201cantithesis of separation of powers.\u201d[171]<\/a> Second, the legislative branch may confer non-judicial functions to the courts or judicial functions to bodies which are not courts. While the Canadian Constitution does not insist on a rigid separation of powers, there is nonetheless a \u201cfunctional\u201d separation of powers between the three branches of the state under which the legislature is primarily responsible to make the law, the judiciary to interpret and apply the law, and the executive to administer and implement the law.[172]<\/a> The aspect of the separation of powers which concerns us is the separation between the judiciary, on the one hand, and the legislature and the executive, on the other. The rule of law is meaningless without the existence of independent and impartial courts with jurisdiction to review the legality of legislative and executive action. This aspect of the separation of powers is entrenched in section\u00a096 of the <\/a><\/a><\/a><\/a>1.\u00a0 Defining the Rule of Law<\/h1>\n
<\/a><\/a><\/a><\/a>A.\u00a0 The Supreme Court of Canada\u2019s Conception of the Rule of Law<\/h2>\n
<\/a><\/a><\/a>1.\u00a0\u00a0\u00a0 Rule of Law as Rule by Law<\/h3>\n
<\/a><\/a><\/a>2.\u00a0\u00a0\u00a0 Rule by Law as a Normative Framework<\/h3>\n
<\/a><\/a><\/a><\/a>B.\u00a0 An Alternative Conception of the Rule of Law<\/h2>\n
<\/a><\/a><\/a>1.\u00a0\u00a0\u00a0 Rule of Law as Justification<\/h3>\n
a.\u00a0\u00a0\u00a0 Fundamental Legal Principles<\/h4>\n
b.\u00a0\u00a0\u00a0 Judicial Review<\/h4>\n
c.\u00a0\u00a0\u00a0 Onus of Justification<\/h4>\n
<\/a><\/a><\/a>2.\u00a0\u00a0\u00a0 Justification as a Normative Framework<\/h3>\n
a.\u00a0\u00a0\u00a0 Law as Justification and the Canadian Legal Order<\/h4>\n
b.\u00a0\u00a0\u00a0 Law as Justification and PII under the Common Law<\/h4>\n
c.\u00a0\u00a0\u00a0 Law as Justification and PII under Statute Law<\/h4>\n
\n
<\/a><\/a><\/a><\/a>II. Assessing the Legality of Section\u00a039 of the CEA<\/em><\/h1>\n
<\/a><\/a><\/a><\/a>A.\u00a0 Section\u00a039 Is Procedurally Unfair<\/h2>\n
<\/a><\/a><\/a>1.\u00a0\u00a0\u00a0 The Decision-Maker Is Not Independent and Impartial<\/h3>\n
a.\u00a0\u00a0\u00a0 Requirements of the Rule Against Bias<\/h4>\n
b.\u00a0\u00a0\u00a0 Consistency of Section\u00a039 with the Rule Against Bias<\/h4>\n
c.\u00a0\u00a0\u00a0 Consequences of the Violation of the Rule Against Bias<\/h4>\n
2.\u00a0\u00a0\u00a0 The Decision-Maker Is Not Required to Give Reasons<\/h3>\n
a.\u00a0\u00a0\u00a0 Requirements of the Duty to Give Reasons<\/h4>\n
b.\u00a0\u00a0\u00a0 Consistency of Section\u00a039 Certificates with the Duty to Give Reasons<\/h4>\n
c.\u00a0\u00a0\u00a0 Consequences of the Violation of the Duty to Give Reasons<\/h4>\n
B.<\/a><\/a><\/a><\/a>\u00a0 Section 39 Violates the Core Jurisdiction and Powers of Superior Courts<\/h2>\n