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Constitution - Conventions. Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner)
In Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner) (SCC, 2023) the Supreme Court of Canada considers the balance between freedom of information law and cabinet secrecy, here in an appeal from an Ontario FIPPA JR of the CBC's request for cabinet 'mandate letters'.
Here the court considers cabinet confidentiality and 'constitutional convention':[27] Beyond legislation, Cabinet confidentiality is protected as a matter of constitutional convention, or the rules of behavior established by government institutions that are not enforced by the courts, but are considered binding by those who operate the Constitution (A. Heard, Canadian Constitutional Conventions: The Marriage of Law & Politics (2nd ed. 2014), at p. 5; see also Reference re Resolution to amend the Constitution, 1981 CanLII 25 (SCC), [1981] 1 S.C.R. 753, at p. 880). Because s. 12(1) was designed to preserve the secrecy of Cabinet’s deliberative process, the constitutional dimension of Cabinet secrecy was crucial context in interpreting s. 12(1). . Democracy Watch v. Canada (Prime Minister)
In Democracy Watch v. Canada (Prime Minister) (Fed CA, 2023) the Federal Court of Appeal considered an appeal of a denied judicial review challenging the date of the last federal election, advanced by a well-known public interest group.
The quotes consider the doctrine of constitutional 'conventions':[19] Second, the changes to the factual and legal landscape alleged to have occurred since Conacher was decided are of no assistance to the appellants. Even assuming that a new constitutional “confidence convention” has emerged since Conacher, which would limit the advisory authority of the Prime Minister in the manner suggested by the appellants, it is trite law that constitutional conventions are not enforceable by courts, although courts may be called upon to recognize their existence and determine whether they have been breached.
[20] As the Supreme Court of Canada stated in Re: Resolution to Amend the Constitution, 1981 CanLII 25 (SCC), [1981] 1 S.C.R. 753 (the Patriation Reference), “[t]he very nature of a convention, as political in inception and as depending on a consistent course of political recognition by those for whose benefit and to whose detriment (if any) the convention developed over a considerable period of time is inconsistent with its legal enforcement.” (Patriation Reference at 774-775; see also The Honourable Malcom Rowe & Nicolas Déplanche, “Canada’s Unwritten Constitutional Order: Conventions and Structural Analysis” (2020) 98:3 Can Bar Rev 430 at 444 (Canada’s Unwritten Constitutional Order)).
[21] However fundamental they may be to the Constitution, constitutional conventions are not part of the law of the Constitution as “[t]hey are not based on judicial precedents but on precedents established by the institutions of the government themselves”, “[n]or are they in the nature of statutory commands which is the function of the courts to obey and enforce.” (Patriation Reference at 880). I pause to recall that constitutional conventions are not to be conflated with the underlying constitutional principles discussed in Reference re Secession of Quebec, 1998 CanLII 793 (SCC), [1998] 2 S.C.R. 217, which can assist in the interpretation of constitutional provisions and may, in certain circumstances, give rise to substantive legal obligations (Reference re Secession of Quebec at para. 52; see also Canada’s Unwritten Constitutional Order at 440).
[22] Here, the appellants, for all intents and purposes, are not merely seeking recognition of the existence of a new constitutional convention in the shape of a “confidence convention”. They seek instead that the convention be legally enforced through a judicial declaration that section 56.1 of the Act must now be interpreted in a manner that curtails the Prime Minister’s advising authority in election matters to the extent provided for by this convention.
[23] In the Patriation Reference at pages 880-881, the Supreme Court opined that perhaps the main reason why constitutional conventions cannot be enforced by courts is that these conventions generally conflict with the legal rules that courts are otherwise bound to enforce, stating that such conflict “results from the fact that legal rules create wide powers, discretions and rights which conventions prescribe should be exercised only in a certain limited manner, if at all.” For example, as a matter of law, the Governor General could refuse to assent to every bill passed by Parliament, but constitutional convention prevents her from doing that. However, if this particular convention were violated, the courts would be bound to enforce the law, not the convention, and would therefore “refuse to recognize the validity of a vetoed bill” (Patriation Reference at 881).
[24] In sum, constitutional conventions cannot be crystallized into laws, “unless it be by statutory adoption” (Patriation Reference at 882).
[25] Therefore, assuming the appellants’ allegation that a “confidence convention” has emerged since Conacher and that it has been breached by the Prime Minister in the manner described in the Application, to be “true” for the purposes of the respondents’ motion to strike and assuming it is successfully established on the merits, that breach, to use the words of Justice Rowe and Me Déplanche, would only “create [sic] a deficit in legitimacy, not legality, which is sanctioned ultimately in the political arena” (Canada’s Unwritten Constitutional Order at 433).
[26] This, in my view, is what ultimately transpired in Conacher, where this Court, consistent with its function as a court, focussed on—and enforced—the law, that is, section 56.1 of the Act, and concluded that that provision “specifically preserved” the Governor General’s powers and discretion to dissolve Parliament and, by extension, the Prime Minister’s advice-giving role. The Court perfectly understood that in order to curtail these powers, Parliament would have had to use “explicit and specific wording”, something it had not done and, I would add, something it has not done since (Conacher at paras. 4-5). Again, as long as they have not been crystallized into law through statutory adoption, constitutional conventions are not legally enforceable and their breaches can raise only legitimacy concerns.
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[36] Finally, the appellants submit that there is new evidence of the “will of Parliament”, which further supports their claim that the alleged “confidence convention” has been breached by the Prime Minister. This evidence consists of declarations made by political actors or reported in the media in the spring and summer of 2021, which opposed the calling of an election during COVID. The appellants contend that the Prime Minister, in deciding to advise the Governor General to dissolve Parliament and call an election despite maintaining the confidence of the other political parties, acted against the will of Parliament.
[37] I agree with the respondents that this “new evidence” is incapable of changing the outcome of this case, as Conacher definitively concluded that such evidence is irrelevant to the interpretation of section 56.1 of the Act. The “will of Parliament” has been formally expressed through section 56.1 of the Act. This is the “statutory command [sic] which it is the function of the courts to obey and enforce” (Patriation Reference at 880). Section 56.1 was found in Conacher not to affect the Prime Minister’s advice-giving role regarding the dissolution of Parliament and the calling of elections.
[38] It is of course always open to Parliament to amend that “statutory command” but, as mentioned previously, it has not done so. As indicated previously as well, even if a convention pointing in a different direction had emerged since the adoption of section 56.1, this convention would not be legally enforceable and could have no bearing on the interpretation of that provision.
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